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July 13, 2008

Reflections on the politics of SCOTUS and personhood of its members

As one might expect, Linda Greenhouse's latest (and last?) New York Times column covering the Supreme Court is lovely and moving and insightful.  And, as we look ahead to a new occupant in the White House (who might have a chance to appoint more Justices than any President since FDR), I found two passages from the piece especially significant.  These two passages highlight the importance and impact of politics and personhood.

Concerning politics, consider these astute observations from (soon to be Professor) Greenhouse:

Watching the back-and-forth between a state legislature and the Supreme Court of the United States had given me a real sense of the court as an active participant in the ceaseless American dialogue about constitutional values and priorities, not a remote oracle....

The court can only do so much.  It can lead, but the country does not necessarily follow.

In fact, it is most often the Supreme Court that is the follower.  It ratifies or consolidates change rather than propelling it, although in the midst of heated debate over a major case, it can often appear otherwise.  Without delving into the vast political science and legal academic literature on this point, I’m simply offering my empirical observation that the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.

I consider these observations exactly right, and they help explain why the Supreme Court's work on many punishment and sentencing issues has been so dynamic and unpredictable and controversial in recent years.  In some ways, a group of Justices want to lead (see Blakely) a country not ready to follow, in other ways the Court is still sorting through developing political or social consensus about modern sentencing realities (see Booker et al. and the Court's capital jurisprudence.)

Concerning personhood, consider these more personal recollections from Professor Greenhouse:

The court I began covering in 1978 was populated by men who were, for the most part, older than my father.  Thurgood Marshall, William J. Brennan Jr. and Byron R. White were historic figures.  Harry A. Blackmun had only a few years earlier been propelled from obscurity when he wrote the court’s 7-to-2 majority opinion in Roe v. Wade.  Nine new justices joined the court during my time there.  Of the original group, only John Paul Stevens remains. Three members of the court are younger than I am.

Amid all that change, nothing touched me as much as the arrival in September 1981 of Sandra Day O’Connor.  I had never heard her name before President Ronald Reagan nominated her that summer to succeed Potter Stewart.  Although I covered her confirmation hearing, she remained to me basically a blank slate. That didn’t matter. The first time I looked up from the press section and saw a woman sitting on the bench, I was thrilled in a way I would never have predicted.  Her presence invaded my subconscious. I had recurring dreams about her.  In one, she asked me my opinion on a pending case (something no justice ever did in real life). But mostly, she just had walk-on roles in ordinary nighttime dramas, her presence signifying what it meant to me to know that there was no longer a position in the legal profession that a woman could not aspire to.

These comments and other passages in this great piece reinforce the importance and value of a distinctive focus on personhood and personal background when it comes to Supreme Court appointments.  As I have suggested in prior posts urging a broader perspective on SCOTUS short lists, there is a symbolic importance and long-term impact in appointing Justices whom even savvy court-watchers have never previously considered.  I hope that lots of people who've never before seen a Justice like themselves have an opportunity to have a new member of the Court invade their subconscious and signify "that there [is] no longer a position in the legal profession that a [certain type of person] could not aspire to."

Some related posts:

Cross posted at Prawfs

July 13, 2008 at 09:56 AM | Permalink


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Not to be excessively cynical about it, but I just have a suspicioun that Ms. Greenhouse is so fond of O'Connor because O'Connor voted to preserve Roe v. Wade (in Casey) and Miranda v. Arizona (in Dickerson). These are two icons of the liberal establishment. If O'Connor had voted the other way on them, I really doubt that Ms. Greenhouse would be so enthusiastic. Indeed I would bet the house that she'd be furious.

This plays oddly against Ms. Greenhouse's other thought excerpted here, namely that the Court is in a "dialogue" with other components of government.

Dialogue my foot. What kind of "dialogue" is it when the Court gives orders that everyone else has to obey? This is like saying a father has a "dialogue" with a six year-old.

The main problem with Roe and Miranda is not that they necessarily represent bad policies. The problem is that the policies they represent got constitutionalized (and constitutionalized on a skimpy basis), making them all but impossible for normal democratic processes to overturn or even modify. If the Court really wants a "dialogue," maybe it should be more modest in the use of its ability to trump other voices.

Posted by: Bill Otis | Jul 13, 2008 2:45:36 PM

Bill, do you feel the same way about Heller?

Just curious.

Posted by: Doug B. | Jul 13, 2008 4:02:21 PM


No, Heller is different, because the constitutional basis for it is considerably stronger.

Heller rests on the actual words of the Second Amendment, explicitly providing for the right to keep and bear arms (although admittedly with an opaque preamble).

Miranda, by contrast, rests on no textual basis. The Fifth Amendment provides for the right to be free from COMPELLED self-incrimination, not UNWARNED self-incrimination. There will be instances in which a lack of warnings will tend to show that a given defendant's statement was compelled, sure, but the idea -- upon which Miranda squarely rests -- that a lack of warnings per se and always means that the statement waa compelled is not merely incorrect but preposterous.

As to Roe, there is no better critic of its supposed constitutional basis than Ruth Bader Ginsburg, who, before she became a Justice, wrote an article just demolishing the constitutional bona fides of Roe. (I wish I could remember the article's name, but I don't).

The Constitution does not by its text provide a free-standing right to privacy (which is at the heart of Roe). Nor, even were it otherwise, is abortion as performed in the great majority of cases a "private" act.

For roughly 200 years, the Constitution said nothing about abortion. In 1973, a liberal Court discovered it's in there after all. Baloney. More than practically any other decision in my lifetime, Roe brought into question the legitimacy of judicial review, and largely opened the debate about when the justices' personal policy preferences ought to wind up in the newly re-written Constitution.

Again, Roe may represent a perfectly sensible policy position, one that would command majority support -- if the majority were given the chance to say, which Roe made sure would never happen.

Posted by: Bill Otis | Jul 13, 2008 4:41:46 PM

Bill -- when you write "The Constitution does not by its text provide a free-standing right to privacy" - you can't really blame the Roe court for that, can you? Griswold established that premise nearly 8 years earlier.

(Not that I disagree that the right is not there - just that the Roe court expanded the right, not created it).

Posted by: NewFedClerk | Jul 14, 2008 9:06:59 AM

Bill. To me, your distinction between unwarned and compelled is hot air; it's a distinction without any meaningful difference. And that leads me to my response to Doug's post. What I dream about on the court is a convicted felon, ideally a murderer. Not because I approve of murder but because I believe that our legal and political discourse has become totally divorced from the reality of the world that most people live in. Judge Holmes talks about the 'reasonable man' being the man of 'ordinary experience'. But after all the legal training and judicial training that our modern judges go through they are as divorced from ordinary experience as Paris Hilton. As our consequence the legal profession (write large) has become insular, even incestuous, in it's cultural outlook. That's very bad, IMHO.

Posted by: Daniel | Jul 14, 2008 12:56:35 PM


You are as usual correct. The penumbra-generated right to privacy was a creation of Griswold. Roe merely took it and ran with it.

Posted by: Bill Otis | Jul 15, 2008 8:28:42 AM


"[Y]our distinction between unwarned and compelled is hot air; it's a distinction without any meaningful difference."

There's plenty of difference. Example: Suppose I get arrested and questioned by the police without being given Miranda warnings. Does that mean my ensuing statement is compelled?

Not exactly. Having been a long-time federal criminal litigator, and a sometime law professor, it's absurd to think that, in order to avoid compulsion, the cops need to give me warnings I could already recite in my sleep.

Now of course I'm an unusual case. But the point applies to many more people than just those with my experience.

I once debated Bill Stuntz, now a professor at Harvard but at the time on the faculty at Virginia, on Miranda and Dickerson. Stuntz attacked Miranda from the left. That is, his thesis was that Miranda is mostly meaningless -- it looks like it protects against police overbearing but it really doesn't. This is so, in his view, because tough, wily and experienced defendants don't need the warnings (since they've been through it all before and are going to talk when, and only when, they think it will advance their interests). On the other hand, less self-possessed defendants can be persuaded to talk even if they are given the warnings in neon lights, because the police have learned how to question people in ways that induce them to open up without ever compelling them to do so.

And it's not just modern practice that illustrates the difference between an unwarned confession and a compelled one. At the time the Fifth Amendment was adopted, everyone knew what compulsion was: It was beating a statement out of the suspect. That is the real evil against which the Amendment is aimed. No matter what else may be said of it, the mere failure to give warnings is scarcely the same as beating a suspect or any other form of actual compulsion.

This is not to say that giving warnings is a bad idea as a matter of policy. Because the Fifth Amendment DOES prohibit compelled statements, the government wants to be able to show at the suppression hearing that the defendant spoke voluntarily. It is thus the smart thing to do to give the defendant the warnings. And at the time Miranda was decided, giving warnings was indeed the practice set forth in the FBI's training manual (there is a footnote near the end of the government's brief in Dickerson noting this).

So I agree that giving warnings is the way to go as a policy matter. But the idea that they are the sine qua non of a voluntary statement, and thus CONSTITUTIONALLY required, is simply false.

Finally, even if it were true that most of the time, unwarned = compelled, it would not be true all the time. As ever with fact-bound issues, the court at the suppression hearing would have to hear all the evidence and decide. Thus, there is neither a textual nor even a practical basis for splicing a warnings reqirement into the Fifth Amendment. The way the Framers wrote it was just fine.

Posted by: Bill Otis | Jul 15, 2008 9:11:47 AM

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