Last night I attended a panel discussion on "The Changing Supreme Court" at the Commonwealth Club. I have listened to the Commonwealth Club discussions many times on NPR and have always been impressed by the quality of the participants and the skill of the moderators to manage the flow. This was my first time in attendance so I had great anticipation for my inaugural live event.
The participants all had pedigreed credentials for the topic. Two had clerked for Supreme Court Justices, one had been a California Supreme Court Justice, and one had clerked for Supreme Court Justice nominee Samuel Alito during the now famous Planned Parenthood vs Casey case.
The reason I picked this debate as my first at the Commonwealth Club and shelled out $18 for the privilege was that I had some burning questions that I had not been able to answer through the politicized haze of the media reporting. I was hoping this debate would cut the simplistic "conservative vs liberal" political divide and help me answer these questions.
The first question was "should I care about the appointment of the current nominee Samuel Alito?". This was answered resoundingly yes for four reasons. First, he is replacing Sandra Day O'Connor who has served on the court since 1981 and has been in the majority of more than 80% of the 5-4 splits decisions and thus has been the pivotal voter on the court more than any other justice. So this nominee is more important than the previous nominee John Roberts. Second, the Planned Parenthood vs Casey case showed that Alito had a very different position to O'Connor in what was considered an "undue burden" for pregnant women and showed a lack of real world pragmatism. Of course for healthy marriages founded on strong communication, there is no undue burden for pregnant women to inform their husbands; but for unhealthy marriages, the burden is very great indeed. Alito seemed to ignore this group of women. Third, Alto's experience is from the executive, not judicial, branch of government and history has purportedly shown that justices with this background tend to be more deferential to the executive. Given the current administration's position (we are at war and as commander-in-chief the President's right to defend his citizens trumps all other rights (e.g. habeas corpus)) and the fact that the "war on terror" is unending (unlike the Civil War or WW2), this is an issue that has a direct and real impact on our daily lives. Fourth, and perhaps most importantly, Justices are not just umpires mechanically interpreting a rule book as John Roberts mischaracterized. Far from it, Justices only rule on issues where the rules are not clear which is why it's not an issue of intelligence or integrity but how people think, what are their real world experiences, what principles do they revert to in times of crisis or stress.
The second question was "should I worry about the appointment of the current nominee Samuel Alito?". This question was not answered. I actually wrote a question for the moderator which did not get asked, so my search for an answer continues. I want to know whether there has been any work of scholarship analyzing the relationship with the a priori political stance of a justice with their post hoc actual voting record? I have a hunch that the life tenure and the awesome (in the true sense) responsibility leads to Justices changing over time, perhaps towards more moderate positions and away from the ideological extremes. I have seen no empirical evidence to test this hunch so if any one can point me in the right direction to understand this issue, I would be grateful.
$18 well spent.
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