Long-serving justice, Stevens J has retired from the Supreme Court. Stevens J’s reign will be remembered for the dissents he made in the (mildly) conservative Burger court that were transformed into law in later years. Through his well-reasoned dissents, Stevens J built up a coherent alternative jurisprudence to that of the Rehnquist conservative court. In my opinion, to replace him, Obama must appoint a justice who can be that ideological leader, who can shape the very future of the liberal wing, rather than winning a few cases here and there. Of the present liberal justices, only Ginsburg shows any real promise towards being that leader and I don’t think she’ll shape up.
The key ingredient often missing from standard media analyses of what makes a great (liberal) justice and intellectual leader is a respect for precedent. Yes, you cynics, even in developing nations like the United States without an independent judiciary, precedent is important if you take a long enough view.
Too often, influential judges disappear once they resign because they relied purely on internal court dynamics to hold sway, rather than the eternal life of their decisions. O’Connor J was the swing justice (together with Kennedy J) during the Rehnquist years. As a former politician, she had a keen political ear and her decisions, whilst nominally supported by precedent, tended to be minimalist. They avoided controversy and hewed strictly to the middle ground. Just a few years after her retirement, that legacy is being eroded as the narrow 5-4 decisions she authored are being sidelined by later decisions. Their flawed or weak logic makes them an easy target for the conservative Roberts court to narrow their effect, to criticise their holdings or just flat out overrule them. Obama should not appoint another lawyer turned politician because logic is the life of the law – not pragmatism. What is absolutely not needed is a justice with ‘heart’. All good judges believe in the rights and freedoms of the individual, to say that some don’t have heart because they take a wider view of things is foolish, and somewhat naive. Justices who think with their hearts and not their head are swiftly overruled by later courts.
Australians will understand when I say it’s the difference between Mason CJ and Murphy J. Murphy, as a former politician, nominally supported his decisions with past precedents but reading his decisions, any half-witted law student can see how little he believed in precedent. The logic of those past cases don’t flow through his judgments, Murphy never saw those cases in the wider context of the law. He focused purely on the results – he just wanted the liberal outcome – greater power to the Commonwealth, and more rights and protections for individuals. There are very few influential Murphy judgments. In fact, the only one I can think of is the freedom of political communications cases – and the judgments which finally recognised it were quite careful not to rely on Murphy’s dissents (nor the US cases on which he drew heavy support) but on the text of the constitution itself.
On the other hand, the Mason court is known for its sharp tack to the left and yet many of the cases decided during that era still stand. That’s because Mason followed precedent, he applied those cases and put them in their wider context. But he also gave the law a liberal spin, through consistent and well argued reasoning. He said that judges should explicate the policy considerations underlying their rulings, whilst sticking to both precedent and to the text of legislation and the Constitution. He moved Australian law away from a strictly legalistic way of thinking to a more substantive rights based view of the law.
In this highly charged political environment, it is very tempting for Obama to appoint a Murphy. He’s tempted to appoint another Breyer – the admin lawyer whose dry cases put even nerds to sleep. He’s tempted to appoint another Sotomayor, whose pragmatism won’t excite passions. The conventional media wisdom is that he needs a congenial person who can shepherd through a few 5-4 decisions and hold off the conservative tide. He wants someone who can sit inside the Supreme Court and negotiate with the swing justices (by which I mean Kennedy) to win a case here and there. Modern liberals are very bad at taking the long term view. They fight for causes because they believe in them, without seeing the long term effects. They fight for affirmative action for its immediate benefits to minorities, without realising that it harms long term race relations.
But the very greatest American cases were not 5-4 decisions. They were the ones which looked at the text of the Constitution, which looked at past precedents and drew them together to create new and lasting law. You cannot do one without the other. You cannot achieve justice without respect for the rule of law. Miranda v Arizona (the case which established Miranda rights – the right to remain silent, the right to be represented by counsel etc) remains a lodestone for conservative hatred. Despite being affirmed numerous times, it still stands a strong chance of being overruled one day. As does Roe v Wade. But Brown v Board of Education – which sparked off even bigger routs of conservative invective in its day (including a refusal by several states to obey its orders) – is now the most respected case in US history by both conservatives and liberals. That’s because it is the true and most cogent reading of the 14th amendment. People aren’t stupid (yes, even Americans), they can see when judges are being political.
I very much doubt Obama will do this, but he should appoint a fiery liberal with an ability to draw on precedent to form a holistic liberal jurisprudence. The justice shouldn’t be ideological or pugnacious like a Scalia. I’m thinking more of a Ginsburg with a bit more oomph. In fact, the best person is probably Obama himself. Cerebral, dispassionate with eloquent words and logic powerful enough to make America feel bipartisan, if only for half a year.
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