Supreme Court 101

The Supreme Court just finished its 2019 session. The Supreme Court and matters of Constitutional Law are one of my interests, and the irregularities of the Supreme Court fascinate me. It’s one of the few remaining political institutions which defies the shallowness of our modern, hyper-partisan political culture. A few weeks ago, in Nieves v. Bartlett, the court ruled in favor of two Alaskan police officers when they were sued over First Amendment concerns, with Justice Gorsuch (the conservative hero) and Justice Ginsburg (the progressive icon) dissenting in part and Justice Sotomayor dissenting in full. How do you explain that in conservative vs. liberal terms?

Most Americans agree that the Supreme Court is an incredibly important institution, with 90% of respondents to a 2017 C-SPAN poll saying Supreme Court decisions have an impact on their everyday lives, and 82% of respondents said Supreme Court appointments influenced their votes in the 2016 election. However, only 43% of respondents could name a single justice.

Passion without knowledge leaves one easy prey for demagogues and partisan excesses. In an effort to fight this, we’re going to take a tour of the Supreme Court, more specifically the nine justices and a short detail of what makes each one distinct. I am by no means an expert, but this is a good starting point for anyone who wants to know who’s who on the highest court in the land. We’ll start at the Court’s progressive end and work right, as those terms are generally defined.

Justice Ruth Bader Ginsburg, age 86, appointed in 1993, confirmed 97-3
Justice Ginsburg is the most popular justice on the court, and she’s become a “feminist icon”. She has her own line of merch, two movies have been made about her in the last year, and she once went on Colbert to work out. I kid you not, I once saw an overweight middle-aged man in a shirt that read “my Patronus is Ruth Bader Ginsburg.”

She’s also the oldest justice on the court and the second longest serving. While I have little love for her as an interpreter of the law, she is undoubtedly an impressive character, managing to handle deteriorating health in stride.

Justice Sonya Sotomayor, age 68, appointed in 2009, confirmed 68-31
Justice Sotomayor was President Obama’s first appointee. Her and Ginsburg are pretty comparable judges, with the two agreeing 93% of the time last term. I listed Ginsburg first mostly because of her name recognition, not that Ginsburg is significantly more progressive than Sotomayor. I think of Sotomayor in particular as the “social justice” justice, often ruling in favor of expanding the rights of women, racial minorities, LBGT people, and defendants (on which she has a peculiar alliance with Justice Gorsuch). A good example is her dissent in Trump v Hawaii from last year, the case which upheld President Trump’s travel ban, in which Justice Sotomayor authored a particularly furious dissent.

Justice Elena Kagan, age 59, appointed in 2010, confirmed 63-37
Justice Kagan was President Obama’s second appointee, going from the dean of Harvard Law School to Solicitor General to the Supreme Court. While she doesn’t have the cult following of Ginsburg and Sotomayor, she usually votes with them (agreeing 88% of the time with each of them last term). At the same time, when the court wants to make a compromise, it almost always involves Justice Kagan. This happened in National Federation v Sebelius from 2012, where Chief Justice Roberts reached out to Kagan and Breyer to make a compromise ruling which upheld the Affordable Care Act. Evidence to her attitudinal moderation, Kagan writes very few of her own dissents.

Justice Steven Breyer, age 80, appointed in 1994, confirmed 87-9
Justice Breyer, who just finished his 25th year on the court, has long been the Court’s liberal anchor. He generally flies under the radar, being the least known judge on the Court. I recently finished a book by Justice Breyer, in which he details his judicial philosophy as putting an emphasis on “active liberty”, the ability of people to participate in governance.

Chief Justice John Roberts, age 64, appointed in 2005, confirmed 78-22
I’ve put Chief Justice Roberts as the Court’s swing vote, though Justice Kavanaugh could probably go here. Despite that position, Justice Roberts is not a moderate. In many ways, he is the conservative version of Justice Kagan – reliable but unspectacular. The thing about Justice Roberts and the reason I have him in the middle is that he is acutely aware of the political ramifications of the Court’s actions, and he is averse to using the Court to affect change. He is the definition of judicial restraint. An example from this term is Department of Commerce v New York, the case about the citizenship question on the census, when Roberts forged a long opinion technically ruling against the Trump administration (and averting a political firestorm), but with six part decision, four of them with a unique alignment.

Robert’s restraint further evidenced by the fact that under his watch the Supreme Court overturns precedent at a slower rate than it did under the three Chief Justices before him. So for all the talk about the new conservative majority recklessly overturning precedent, that’s not backed up by evidence. It’s anxiety over the prospect of one particular precedent, but Robert’s caution makes me skeptical he would ever vote to overturn legal precedent about abortion.

Justice Brett Kavanaugh, age 54, appointed in 2018, confirmed 50-48
Brett Kavanaugh is the Court’s junior justice, which means he gets the honor of such illustrious tasks as answering the door and figuring out what’s for lunch. He just finished his first term, which means how exactly he will rule as a justice on the high court is not crystal clear. Here’s what we do know. Justice Kavanaugh is not a “right-wing extremist”. He’s a pretty standard conservative judge. He spent more time in the majority last term than any other justice, which technically makes him the most agreeable member of the Court. Also, he isn’t Neil Gorsuch. Anybody who tells you they are similar judges is either ignorant or lying to you. In fact, Gorsuch and Kavanaugh agreed LESS during their first term than any other duo of justices appointed by the same president.

Justice Samuel Alito, age 69, appointed in 2006, confirmed 58-42
With Justice Alito, we have the beginning of the Court’s originalist wing, the interpretative school which considers exclusively the original meaning of the text. However, Justice Alito is not quite as originalist as our next two justices, and he tends to be more of a “law-and-order” conservative justice. In that regard, he’s similar to Chief Justice Rehnquist, who died the year before Alito’s appointment.

Justice Neil Gorsuch, age 51, appointed in 2017, confirmed 54-45
Justice Gorsuch was President Trump’s first SCOTUS appointment, filling the seat Mitch McConnell held open after the death of Antonin Scalia in 2016. He is the Court’s only Protestant judge, as five others are Catholic and the other three are Jewish (at least ethnically). His record in support of criminal rights (in agreement with Sotomayor) have led some to call him the most “libertarian” judge, and he’s my favorite member of the Supreme Court.

Justice Clarence Thomas, age 70, appointed in 1991, confirmed 52-48
Justice Thomas is the longest-serving Supreme Court justice, being appointed at age 43. He could end up serving for 40 years. I have listed as the most conservative, even more so than Gorsuch, because he is the attitudinal antithesis of Chief Justice Roberts’s caution. Justice Thomas has no problem overturning precedent and no problem wandering into political arenas, an example being in Box v Planned Parenthood earlier this session, where Thomas wrote a 15-page concurrence talking about the relationship between eugenics, Planned Parenthood, and abortion. He is also notorious for not speaking during oral arguments, when the Court reviews the briefs of the case from the lower court decisions. He once went ten years without asking a single question, and once went seven years without saying anything in the Court at all.
Those are the nine justices on the Supreme Court, and to put it mildly, they’re a big deal. A really big deal. Chief Justice Roberts is probably the second or third most powerful person in American government. They’re on break until October, at which point they will begin hearing oral arguments for the cases on the 2020 docket, which include the first second amendment case in 10 years as well as determining the constitutionality of the DACA program.

In other words, it’ll be a blast.

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