Legal Commentary

As one might expect, Linda Greenhouse's (last?) New York Times column about covering the Supreme Court for 30 years is lovely and moving and insightful.  And, as we all 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 regarding the Court's work.

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 are exactly right, and they help explain why the Supreme Court's work on so 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 full 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 come 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 that can come from the appointment of Justices whom even savvy court-watchers have never previously considered.  I hope that in the coming years, lots of people who've never before seen a Justice like themselves have the same opportunity to have a new member of the Court invade their subconscious and "signifying ... that there [is]no longer a position in the legal profession that a [certain type of person] could not aspire to."

Some related posts (from SL&P):

• Judging, politics, sentencing and elections
• Brave New Justice and sentencing issues
• Developing a SCOTUS short list of district court judges
• Insider myopia and the diverse benefits of a short bench
• Thinking creatively about different SCOTUS short lists

Cross posted at SL&P