Elie here. In sports, we assess the legacy of athletes after every game. In politics, we assess the legacy of elected officials after every vote or scandal. So why can’t we do the same for Supreme Court justices?
In case you’ve been living under a rock, it’s been a pretty big week over at One First Street. The Court has decided a number of high-profile, controversial cases. Those decisions have come down with strong holdings, blistering dissents, and stinging concurrences. Each justice is aware that the words they’ve published this week could be around for a long time, long after they’re dead, and will be judged by history.
But who has time to wait for history? David Lat and I engage in some instant legacy analysis on what this week has meant for each of the nine justices on the Supreme Court. Let’s break it down in order of seniority, starting with the Chief….
ELIE: History has not been kind to those who prematurely declare something is “over” when it is not. Roberts’s decision in Shelby County basically hung a “Mission Accomplished” banner on the South declaring an end to racism there, then cynically instructed Congress to “act” on a measure they had passed by a vote of 98 – 0 just seven years ago. He might be a hero in the South for generations to come. Of course, so is Robert E. Lee.
LAT: After his surprising vote in the Obamacare case from last Term, Chief Justice Roberts got a lot of flak from conservatives. He used this Term to recover his standing among them, with his opinion in Shelby County and his dissent in Windsor. In his role as Chief, the steward of the Court’s institutional interest and future reputation, Roberts fared reasonably well. The 7-1 split in Fisher, the affirmative action case, avoided a politicized 5-3 divide. And his opinion in Perry, kicking the case on standing, put the issue of gay marriage on the back burner for a while — a good thing, at least from JGR’s perspective (as a conservative, but one who doesn’t want to be on the wrong side of history).
ELIE: I hope Scalia’s dissent in Windsor, the DOMA decision, will go down as one of the last, dying gasps of an anti-gay culture that refuses to get it. Scalia writes: “But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.”
But actually, when defending “traditional” marriage involves the denial of rights to gays and lesbians, Scalia’s position is all about demeaning and humiliating those who “prefer other arrangements.” I mean, it’s like he can’t even bring himself to say the term “gay marriage” with respect. Scalia continues his path towards becoming the Archie Bunker of our age.
LAT: Justice Scalia is still one of the finest (if not the finest) writer on the current Court, as shown by his mighty dissents (not all of them on the “conservative” side; see his dissent in Maryland v. King, the DNA cheek swab case). But he’s already being called out for his vote in and comments about Shelby County, where he criticized the political process that he normally extols. He probably should have kept a lower profile on that case and just quietly joined the Chief’s opinion, instead of being more vocal and opening himself up to charges of hypocrisy.
ELIE: This guy. His DOMA opinion is basically incoherent. His bizarre opinion in Fisher seems like a cry for help: “Please, I don’t want to be known as the justice who killed affirmative action.” Yet he was a silent partner in Roberts’s assassination of the civil rights movement in Shelby County. But everybody be nice to him because, you know, 5-4!
LAT: I like Justice Kennedy — and I think he likes me too, based on his votes and opinions in Windsor and Perry. The events of this past week once again showed that it’s AMK’s world, and the rest of us are just living in it. His cleverly narrow opinion in Fisher, which garnered seven votes for a result that both conservatives and liberals could live with, showed strategic genius.
ELIE: Here’s what I said on Facebook yesterday: “For the record, I don’t think it’s useful to call Thomas names. I mean, he’s a self loathing deaf mute who has been an enemy of racial justice since he put on robes. But part of the struggle includes allowing people like Clarence Thomas act as oblivious to the realities of current racial discrimination as anyone else.
Thomas isn’t ‘less black’ than me. He’s not ‘a sell out.’ He’s just ‘an asshole.’”
LAT: I find Justice Thomas to be an interesting and provocative jurist, but I do wonder if he’s getting a bit predictable. One could set up two “CT Macros” for your computer. One would say, “I would be even more extreme than the rest of the Court,” which is what he said in Shelby (he’d scrap Section 5). The other would say, “I would overrule decision X, because I don’t really believe in stare decisis, but I won’t for now because that’s not at issue here,” which is what he said in Fisher (he’d gut Grutter).
ELIE: Ruth Bader Ginsburg wrote a historically great dissent in Shelby County. Historically great. I think she also bought herself a year before liberals start begging her to retire again. Also, she made Alito look like a petulant child.
LAT: Justice Ginsburg will go down in history as the Supreme Court’s liberal lioness. She’s more liberal than Justice Kagan, and she’s more fearsome than Justice Sotomayor. In the closing days of the court, the lioness roared often, reading her dissents from the bench to rapt audiences. She probably won’t get the same result she got in Ledbetter, but don’t fault RBG for lack of trying.
ELIE: The most significant thing that happened on the Breyer watch is that he maybe got so spooked by being the frequent victim of crime that now he’s gone to the dark side and thinks the state should be able to take everybody’s DNA. Remembers, the conservatives are always looking to get back at progressives for Souter’s turncoat legacy.
LAT: Well, in fairness to Justice Breyer, he has long been a “crossover sensation” (as John Elwood so memorably put it). I respect Justice Breyer for his fair-mindedness, although he doesn’t make for great copy (except when he’s being victimized by criminals or getting into bicycle accidents). When you think about which justices played big roles in the last Term’s big cases, SGB doesn’t come to mind.
ELIE: Is Sam Alito aware that those women he keeps seeing at work are his colleagues and not his assistants? Whatever. The next time I sexually harass a woman I work with whom I can’t fire, I’m just going to say, “It’s Alito time, bitch.” Because Alito’s legacy right now with women should be one step ahead of Chris Brown’s.
LAT: As Justice Scalia gets older — and occasionally votes with the liberals, when he’s not being angrily conservative — Justice Alito is taking up the mantle of “outspoken conservative justice” at oral argument. It doesn’t go to Justice Thomas, since he doesn’t speak, and it doesn’t go to Chief Justice Roberts or Justice Kennedy, since many on the right still feel betrayed by them.
For my money, Justice Alito is one of the best questioners at oral argument. He’s not bombastic, his questions are not obvious, and they are often a little tricky. He doesn’t speak as frequently as some of the other justices, but when he manages to sneak a question in, it’s usually a very good one. (This was my experience arguing before him when he was on the Third Circuit; he’d be fairly quiet, but then he’d ask the most incisive question ever.)
ELIE: She’s junior, she’s in the minority, right now she’s just in her “happy to be there” phase. At least she asks good questions.
LAT: Personally I prefer Justice Sotomayor’s superb memoir, My Beloved World (affiliate link), to her judicial opinions, which can be a slog. Alito was on to something in Adoptive Couple v. Baby Girl when he referred to the Sotomayor dissent’s “torrent of words.”
SS might not go down in history as a great justice, in terms of her judicial opinions, but I think she will be remembered as a great role model, especially for minorities and women. And I suspect that Justice Sotomayor herself feels the same way. As she told Jodi Kantor of the New York Times, writing opinions is important, but serving as a role model “is the most valuable thing I can do.”
ELIE: The age of recusals is almost at an end. RELEASE THE KAGAN! One thing I will note from the Perry case: Kagan is a Civ Pro nerd if there ever was one. At some point, she’s going to surprise everybody by swinging a case on Civ Pro grounds when everybody has her pegged the other way on the merits.
LAT: Okay, Justice Kagan can barely dress herself, but boy can she write! She has been on the Court for just three terms, but she has already shown herself to be an intellectual superstar, producing powerful, persuasive opinions that are also a pleasure to read. She’s only 53, so she’s going to be around for decades. Conservatives, be afraid, be very afraid.
Those are our quick and dirty thoughts on the Nine and how they will be viewed through the lens of history. What do you think? Share your opinions in the comments, and let us know your favorite justice: