This has been quite a time for anniversaries: the 50th of the 1964 Civil Rights Act, the 50th of the Great Society, the 60th of Brown v. Board of Education. Each has produced a flurry of celebrations and analyses, including the latest, on Brown. Here's one more.
Ten years ago, on the occasion of the 50th anniversary of Brown, I attended one of the most interesting and moving panels ever. Yale Law School brought together six luminaries who had been clerks to Supreme Court justices during the deliberations over the Brown decision. They talked about the internal discussions and struggles to reach agreement, and the fact that the decision actually took two years. The justices—including Chief Justice Earl Warren and Justices Hugo Black, Felix Frankfurter, Sherman Minton, and others—tried mightily to build a consensus. Whatever their ideological predispositions, they all understood that this decision would alter the fabric of American society. They also knew it would reverberate for a long time, exacerbating some deep-seated societal divisions even as it would heal so many others and right so many wrongs.
The two terms allowed the justices to reach a unanimous conclusion. Afterward, Frankfurter penned a hand-written note (to young people: There actually were such things in olden times before text messages and tweets) to Warren that read: "Dear Chief: This is a day that will live in glory. It is also a great day in the history of the Court, and not in the least for the course of deliberation which brought about the result. I congratulate you."
As I read that letter, I thought about what would have happened if the current Supreme Court were transported back to decide Brown. Two years of deliberation? No way. Unanimous or even near-unanimous decision? Forget it. The decision would have been 5-4 the other way, with Chief Justice John Roberts writing for the majority, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race"—leaving separate but equal as the standard. The idea that finding unanimity or near-unanimity was important for the fabric of the society would never have come up.
Recent analyses have underscored the new reality of today's Supreme Court: It is polarized along partisan lines in a way that parallels other political institutions and the rest of society, in a fashion we have never seen. A couple of years ago, David Paul Kuhn, writing in The Atlantic, noted that the percentage of rulings by one-vote margins is higher under Roberts than any previous chief justice in American history. Of course, many decisions are unanimous—but it is the tough, divisive, and most important ones that end up with the one-vote margins.
The New York Times's Adam Liptak weighed in recently with a piece called "The Polarized Court," in which he said, "For the first time, the Supreme Court is closely divided along party lines." Scott Lemieux, in The Week, noted further that the polarization on the Court, like the polarization in Congress, is asymmetric; conservative justices have moved very sharply to the right, liberals a bit more modestly to the left. Much of the movement did occur before Roberts was elevated to the Supreme Court, but his leadership has sharpened the divisions much more, on issues ranging from race and voting rights to campaign finance and corporate power.
How did we get here? As politics have become polarized and as two-party competition intensified, control of the courts—which are increasingly making major policy decisions—became more important. With lifetime appointments, a party in power for two or four years could have sway over policy for decades after it left power. But to ensure that sway meant picking judges who were virtual locks to rule the way the party in power wanted. That meant track records in judicial opinions, and that in turn meant choosing sitting judges to move up to the Supreme Court. It also meant choosing younger individuals with more ideology and less seasoning; better to have a justice serving for 30 years or more than for 20 or less.
The Warren Court that decided Brown had five members who had been elected to office—three former U.S. senators, one of whom had also been mayor of Cleveland; one state legislator; and one governor. They were mature, they understood the law, but also understood politics and the impact of their decisions on society. As a consequence, they did not always vote in predictable fashion. Only one of the justices, Sherman Minton, had served on a U.S. appellate court—and he had been a senator before that appointment.
Now, zero members of the Supreme Court have served in elective office, and only Stephen Breyer has had significant experience serving on a staff in Congress. Eight of the nine justices previously were on U.S. courts of appeal. Few have had real-world experience outside of the legal and judicial realm. And few of their opinions and decisions come as surprises. That is not to say that all the justices are naïve (although Anthony Kennedy's opinion in Citizens United, blithely dismissing the idea that there could be any corruption in campaign money spent "independently" in campaigns, was the epitome of naivete). Roberts is political in the most Machiavellian sense; he understood the zeitgeist enough to repeatedly assure the Senate during his confirmation hearings that he would strive to issue narrow opinions that respected stare decisis and achieved 9-0 or 8-1 consensus, even as he lay the groundwork during his tenure for the opposite. His surprising ruling on the Affordable Care Act was clearly done with an eye toward softening the criticism that was sure to come with the series of 5-4 decisions on campaign finance and voting rights that lay ahead.
With a Court that is increasingly active in overturning laws passed by Congress and checking presidential authority when there is a president of the opposite party, that means nominations both to appeals courts and to the Supreme Court have become increasingly divisive and polarized, for both parties. And the policy future of the country depends as much on the actuarial tables and the luck of the draw for presidents as it does on the larger trends in politics and society. We could have one one-term president shaping the Court for decades, and another two-term president having zero appointments. And we could end up with a Supreme Court dramatically out of step for decades with the larger shape of the society, and likely losing much of its prestige and sense of legitimacy as an impartial arbiter, creating in turn a serious crisis of confidence in the rule of law.
For more than a decade, I have strongly advocated moving toward term limits for appellate judges and Supreme Court justices. I would like to have single, 18-year terms, staggered so that each president in a term would have two vacancies to fill. Doing so would open opportunities for men and women in their 60s, given modern life expectancies, and not just those in their 40s. It would to some degree lower the temperature on confirmation battles by making the stakes a bit lower. And it would mean a Court that more accurately reflects the changes and judgments of the society.
If we could combine term limits for justices with a sensitivity by presidents to find some judges who actually understand the real world of politics and life, and not just the cloistered one of the bench, we might get somewhere.
This article appears in the May 22, 2014 edition of NJ Daily.
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