On the Court, Data and Calling Out Lawmakers

Linda Greenhouse eloquently described the recent trend of courts beginning to question legislative intent for discriminating laws in The New York Times last week (The Courts Begin to Call Out Lawmakers). The court’s history of overturning race-neutral laws that discriminate has a fascinating genesis. In Yick Wo v. Hopkins, the Supreme Court reviewed a San Francisco ordinance that required consent from the city board to operate a laundry business in a wooden structure. The statute was race-neutral at first glance, but its application was anything but. While nearly every non-Chinese operator received a permit, the board had been so generous to only one Chinese laundry operator, though about two hundred had applied.

The Court decided the case in favor of one such Chinese laundry operator. The decision was unanimous. The year was 1886. It was the first time the Court relied on data to determine whether a law had discriminated.

Few, if any, of the justices serving on the Court at that time have established themselves in the collective American memory. Students may learn about Marshall and Warren, but few will know Chief Justice Morrison Waite, much less his contemporaries. For too long, this was understandable: decisions like Yick Wo were exceptions to the rule of a Court unmoved by discrimination. Fortunately, at least five of our current Justices have begun to transform Yick Wo into a harbinger of a new jurisprudence.

Justice John Paul Stevens and the Non-Partisan Academic Justice

More and more, it seems the Supreme Court receives vitriolic attacks from both sides of the political spectrum. Whether Citizens United or King v. BurwellHobby Lobby or Obergefell, criticisms of the Court as a collection of partisan interests dominate the news headlines each June. But while the Court is certainly tasked with deciding cases with major political implications, it would be unfair to label each justice as a partisan agent. In fact, the insulation of the Court from partisan elections was a specific decision to let the Justices make unpopular decisions without fear of losing their seats. Observers of the Court may notice a continuing trend of Justices who were nominated and confirmed, perhaps for their expected ideological positions, changing their opinions, or at least decide major cases differently than expected. Justice John Paul Stevens is one such example, and truly embodies the academic and non-partisan nature of the Supreme Court, which particularly captivates my interest.

Raised in a household that followed elections closely, both because my parents had covered presidential elections closely when they worked for CNN, ABC, and the like in the 1980s and because my brother spent many years as a campaign manager and staffer, I have always been acutely keen on partisan politics. Though only four years old in 2000, I knew the Democrats liked Al Gore and the Republicans liked George W. Bush. My understanding of partisan politics and elections only grew from there, watching the Dean Scream ad infinitum in 2004, following the lengthy primary season in 2008, and even advising some of my older friends on their election vote in 2012. Because my views of politics and Washington, DC, were essentially filtered through a lens defined by the imposing dominance of partisanship, the Supreme Court’s non-partisan essence was a shock to me when I first developed interest. Though Justice Stevens was off the Court by this time, I began to research former Justices to develop a sense of what kinds of people served on the Court. Justice Stevens was nominated by President Gerald Ford, as Stevens had demonstrated his conservatism on the Seventh Circuit Court of Appeals, where he had voted against abortion rights, against disqualifying a redistricting plan on the grounds of alleged racial gerrymandering, and for limiting federal intervention in state and local affairs.

During his first years on the Court he remained conservative, on a number of issues he began to change his mind and sided with the liberal wing more and more often. On Affirmative Action, he sided with conservatives in University of California v. Bakke in 1978, but upheld a modified policy at the University of Michigan Law School in 2003’s Grutter v. Bollinger. While he sided with the conservatives in 1976’s Young v. American Mini Theatres, in which he upheld the stringent zoning of adult businesses in Detroit for practical censorship, he was the sole dissent in 2002’s ACLU v. Ashcroft, in which the eight-Justice majority upheld restrictions on online pornography. In his dissent, Stevens argued that while, as a parent, a grandparent, and a great-grandparent, he certainly approved of the goal of the legislation in question, but he could not agree with laws restricting minors from accessing the online material, as it would curtail speech rights.

His position on the death penalty also changed considerably. He initially upheld the death penalty in 1976’s Gregg v. Georgia, but later turned against it in 1988’s Thompson v. Oklahoma, and 2002’s Atkins v. Virginia. In a 2010 review of David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition he wrote for the New York Review of Books, Stevens explains his changing stance. He explains that he, unsurprisingly, finds the execution of the wrongly accused (and thus innocent) heinous and disturbing, and, in light of DNA evidence leading to the exoneration of over 130 individuals on death row, he believed the justice system could never be completely correct, or at least correct enough to justify the death penalty.3 His ability to use contemporary research to update his opinions on what would be cruel, in this case, as well as his ability to separate his ideology from his voting and constitutional interpretation, as well as so many other former Justices’, can serve as an inspiration to so many Americans who feel disheartened by the growing partisan rift in our population and politicians.

The academic nature of the Court is another reason why I became so interested. Many Justices come from academic backgrounds, rather than from practice or from the bench. This, of course, makes sense. While an executive order from the President or a bill passed by Congress require little to no background data or research, the legal histories behind each case before the Court are meticulously studied by both parties, third parties submitting amicus briefs, and the Justices and their clerks. In other words, to decide a case without a research would be legal blasphemy. Justice Stevens, who retired from the Court at age 90, has continued to serve the legal profession and the constitutional law academic interest by publishing books after his term. His most recent, Six Amendments: How and Why We Should Change the Constitution, details six proposed changes to the Constitution he wishes were considered at all levels of government. Though he ended a nearly 35-year career, and though he was 94 years old, Justice Stevens still actively contributed to the constitutional law debate. Justice Stevens also continues to speak across the country, to lawyers’ associations, Law Schools, and Congressional hearings, which he has been doing regularly (usually at least five a year) since his retirement in 2010. That dedication to improving our nation’s laws and governmental institutions is beyond commendable; it sets Justice Stevens apart from some of his fellow Justices, but it also delineates the judiciary from the other branches of government. While serving in Congress may be more of a job one aspires to hold, a Justice position seems to be a reward for a long career in the law. It only makes sense that being a Justice would only be an emblem of that dedication; after all, if you’re retiring at age 90, you might as well never retire.

Justice Stevens, who transformed himself from a relatively partisan ideologue serving, it seemed, at the behest of the Republican Party, to a liberal stalwart by the time of his retirement, is a truly emblematic of the Supreme Court: a body dedicated to the practical studying of the Constitution. Wholly insulated from partisan pressures, Justice Stevens was able to relinquish his hold on his partisan leanings and explore new interpretations of the Constitution and, after he retired, speak to and influence new generations of lovers of the law. His dedication to, and flexibility within, his field is extraordinary, but it can serve as a model to the rest of the Court, the government, and the country.

Continue reading

Dispatches from the Queen of Dissents: Justice Ginsburg’s 2015 Tanner Lecture

When she spoke, I noticed the difference in temperature: words of wisdom, warm and kind, stood in stark comparison to the bitter and harsh cold of outside, both in degrees Fahrenheit and in empathetic (or lack thereof) logic.

When she spoke, I noticed the support that this woman had in my community: an elderly woman, whose written words are the source of both admiration and contempt from one half of this country or the other, was as popular as a rock star or rap icon. Every inspirational tidbit landed with immediate applause, not in awe but understanding. Every bout of humor landed with cacophonous laughter, each louder than the one before it.

Continue reading