Rodger Citron: After Rehnquist?





Rodger Citron, in Legal Times (6-6-05)

[Rodger Citron is an assistant professor of law at Touro Law Center.]

The resignation of Chief Justice William Rehnquist is inevitable, if not imminent. And the impending departure of Rehnquist already has prompted consideration of the Supreme Court's relationship to the politically divided public, the Court's proper role in government, and -- to a lesser extent -- the chief justice's responsibilities in leading the Court.

Just as inevitable, discussion of all these issues will be informed by the memory of Chief Justice Earl Warren, who led the Court to a unanimous decision in Brown v. Board of Education (1954).

The decision in Brown showed what effect a political leader could have on the Court, and since then, every president appointing a justice has had to consider whether or not to choose a politician. Warren's influence was evident more than a decade ago, when President Bill Clinton ruminated over whether to nominate Secretary of the Interior Bruce Babbitt for a seat on the Supreme Court.

Twice Clinton came close to naming Babbitt before ultimately deciding on two sitting judges -- Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994. After Breyer was appointed, Lincoln Caplan noted that 'the president was said to have wanted a big-hearted justice with real-world experience who could help redefine the center of American law.'

Today, President George W. Bush may not idolize Warren (and the prognosticators haven't put any politicians high on Bush's short list for the Court), but the question of whether to select a politician remains relevant.

PRACTICAL WISDOM?

It is therefore instructive to consider the argument in favor of appointing a politician to the Court, which goes like this: A politician as chief justice would bring practical wisdom forged in the real world of politics. A Court populated with former appeals court judges (every current justice except Rehnquist had prior judicial experience) and law professors (Justices Breyer, Ginsburg, and Antonin Scalia) is too insulated from the world in which its decisions apply.

The argument suggests that political experience may help alleviate this problem. Consider Justice Sandra Day O'Connor, who had prior legislative experience in Arizona. Noting the 'sometimes murky legal standards that emerge' from O'Connor's opinions, Youngstown State University professor Paul Sracic, writing in USA Today on March 29, nevertheless praised her decisions for 'demonstrat[ing] an understanding that the court's decisions are not simply fodder for Socratic debate in law school classrooms.'

Furthermore, the argument goes, with divisive political issues routinely on the Supreme Court's docket, the appointment of a politician as chief justice would help the Court reach some sort of consensus on these controversial issues. Politicians, after all, are required to compromise and reach agreement over controversial issues with those of different parties who may strongly disagree with them. Even if a politician turned chief justice couldn't achieve unanimity in decisions, then at least the chief justice might broker an agreement on how to reasonably disagree.

This part of the argument waxes and wanes, depending upon the divisions within the Court and the political controversy engendered by its decisions. In his first term, Clinton was intrigued by the possibility that a politician, such as Babbitt, could help lead the Supreme Court to consensus.

This was an appealing prospect at that time, given the bitterness resulting from the Court's decisions on abortion, civil rights and affirmative action, and the death penalty.

More recently, after Bush v. Gore (2000), the Court became a lightning rod for the partisan passions accompanying the election. Since Bush v. Gore, however, the Court has followed a more moderate, perhaps deliberately cautious path on several controversial issues.

The case for appointing a politician as chief justice must also be understood as a case of nostalgia for Warren.

Warren was the last chief justice to come from the rough-and-tumble world of politics. He had been elected attorney general and governor of California before being appointed to the Supreme Court in 1953. And he joined a Court already populated by such former politicians as Hugo Black (an Alabama senator before his appointment) and Harold Burton (an Ohio senator).

Today, Warren is celebrated for leading the effort to desegregate public schools and guiding the Court to its unanimous school-desegregation decisions (most notably in Brown v. Board of Education and also in Cooper v.

Aaron in 1958). Brown is probably the most important Supreme Court decision of the 20th century. Even today, the desire for the moral vision of Brown informs how we think about the next chief justice.

WARREN AND O'CONNOR

Part of the appeal of nostalgia, however, is what is excluded from memory, as well as what is included.

The longing for the leadership of Warren tends to overlook the fact that the Court's decision in Brown resulted in attacks on the Court for being too political. Indeed, Brown injected the Supreme Court into a prolonged controversy that included criticism of the justices themselves for lacking judicial experience and a proper understanding of the role of judges. Opposition to the school-desegregation decisions, combined with dissatisfaction over the Court's civil liberties decisions in the 1957 term, prompted a number of proposals in Congress to require judicial experience as a qualification for appointment to the high court.

Other measures introduced after that term -- such as a 'proposal that members of Congress, heads of federal executive agencies, and governors of States would not be eligible for appointment to the Court for a five-year period after leaving office' -- were, according to the late professor C. Herman Pritchett, apparently directed at certain members of the Court. As Pritchett noted in his 1973 book, Congress versus the Supreme Court, 1957-1960, this latter measure would have disqualified Warren, Black, William Douglas, and Tom Clark.

The irony, then, is that Warren's political experience may have helped him unite the Court, but it also provided fodder for critics who asserted that the Court in fact was too political.

Unlike the Warren Court, the Supreme Court today has only one member who has held a significant elective office, O'Connor. Her approach to judging certainly has been influenced by her political experience as a state senator in the Arizona Legislature -- including service as majority leader, during which she approached issues in a practical, bipartisan manner (according to Jeffrey Rosen's New York Times Magazine profile in June 2001).

O'Connor is known for her flexibility and pragmatism, as demonstrated in affirmative action and abortion cases. With respect to affirmative action, O'Connor provided the fifth vote in a 2003 decision upholding the University of Michigan Law School's policy of including race as a factor to be considered in admissions decisions. But she voted in another case decided the same day, along with five other justices, to invalidate an admissions policy used by the University of Michigan's undergraduate programs. In the latter case, the Court held that the use of a point system to benefit minorities violated the equal protection clause. Perhaps, like the flexible legislator she used to be, O'Connor, and thus the Court in general, eschewed absolute conclusions in either direction in favor of a compromise in which both sides could find some comfort.

With respect to abortion, the Supreme Court essentially has adopted her 'undue burden' standard for analyzing abortion restrictions. On both issues, O'Connor's views have been praised as reflecting the public's own conflicts on difficult issues.

She also has been criticized for exactly the same qualities -- pragmatism, flexibility -- that earn her praise. Her critics assert that she has failed to articulate and follow a consistent set of judicial principles.

DIFFERENT TIMES

So where does this leave us today? What do the differences between the politicians on the Warren Court and the politician on the Rehnquist Court reveal about the possible effect of a politician on whatever Court comes next?

Today, the Court generally follows the approach of reflecting the public's views on controversial issues, rather than leading the effort to resolve those issues. The Court tends to reflect the country's even split between red and blue -- siding, for example, with conservatives in holding that individuals could not sue states for violating the Age Discrimination in Employment Act and with liberals in invalidating state laws criminalizing sodomy. This is due in large part to the control effectively exercised by Justices O'Connor and Anthony Kennedy, the current swing voters.

It is not apparent that either the Court or the country needs the sort of exceptional leadership that Warren displayed as chief justice on the issue of desegregation. With all due respect to our political divisions today, the segregation at issue in Brown required the Court to speak with an overwhelming moral voice to overcome centuries of state-sanctioned racial discrimination. No such need exists with the more modest constitutional issues involving, say, the latest application of the undue burden test. Today, our issues can and are being hashed out, passionately but usually nonviolently, in legislative and executive and lower-level judicial decisions. We don't need a chief justice who has to produce unanimity to enhance the Court's moral authority, and thus we can accept a Court that picks its way along with us.

Finally, it is worth recalling the experience of Warren's predecessor as chief justice. In 1946, the Supreme Court was not held in high regard. This was due, in part, to a number of conflicts on the Court, including a bitter personal dispute between Justices Black and Robert Jackson. President Harry Truman hoped that Fred Vinson, an experienced politician, would be able to
promote unity on the Court.

Vinson, though regarded as a diligent public servant and a decent person, did not succeed. The Court continued to be divided on a number of controversial issues (including civil liberties and presidential power). Today, Vinson is remembered less for his service on the Court and more for what his death in 1953 allowed: the appointment of Warren as chief justice.

Earl Warren continues to cast a long shadow over the position of chief justice. Nevertheless, we currently do not need such a super chief on the job. In selecting the next chief justice, the president and the Senate should take into account more than nostalgia for Warren and the Supreme Court's unanimous decision in Brown v. Board of Education.



This article is reprinted with permission from the June 6, 2005, issue of Legal Times. C 2005 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.
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