Balkinization  

Wednesday, July 15, 2009

A Brief History of Supreme Court Partiality

Guest Blogger

Alexander Tsesis

Accusation of Judge Sonia Sotomayor’s Latina bias brings to mind assertions made against past Supreme Court nominees. After Chief Justice John Marshall retired and talk around the country turned to his successor, on July 28, 1835 the Richmond Enquirer lashed out against “Episcopalians and other Christian sects,” for being “alarmed at the idea of making a Catholic, (Mr. Taney,) the Chief Justice of the United States” and conjuring up the chimera “of the Pope’s ruling the conscience of the Chief Justice.” Later that month, the editors of the National Banner and Nashville Whig reported similar concerns of religious bias: “We perceive that considerable apprehension exists among Protestants of every denomination at the rumor of the appointment of a Roman Catholic (R. B. Taney) of the office of Chief Justice of the United States.” Taney went on to become the first Catholic on the Court. By the time John Roberts, another Roman Catholic, was nominated to be the Chief Justice of the Supreme Court unsubstantiated talk of Catholic bias had fortunately dropped out of the national debate.

With the nomination of Louis Brandeis, who became the first Jewish Supreme Court justice, President Woodrow Wilson encountered powerful opposition. While some of the opposition was driven by anti-Semitism, the dominant claim of bias against Brandeis was that his progressive leanings made him unfit to render fair judgments in cases involving business interests.

Former President Taft, one of the most prominent antagonists to the nomination, charged that Brandeis lacked the philosophical impartiality needed to be on the Court. Republicans, as the Morning Oragonian explained on January 29, 1916, shortly after Wilson’s announcement thought “the nomination of Mr. Brandeis a bid to the Jewish, pro-German and labor votes by Mr. Wilson.” Several past presidents of the American Bar Association condemned the role political currying played in choosing a candidate for the Supreme Court. This charge was more a claim of Wilson’s political interest in gaining the New York vote than one of ethnic judicial bias. Brandeis went on to become one of the most influential jurists of the twentieth century.

Thurgood Marshall seems to have avoided charges of racial favoritism at the time of his confirmation hearings. Black leadership was more noticeably divided in 1967 than Catholic and Jewish leadership had been at the time of the Taney and Brandeis nominations. Even Senator Strom Thurmond, one time presidential candidate of the racist Dixiecrat Party, claimed that he opposed Marshall for the bench because he was a liberal rather than because he was black. A Scripps-Howard News Service journalist, Marshall McNeil, expressed a common sentiment in 1967 that Marshall’s confirmation to the Supreme Court might diminish support for the black power movement, which was at its peak when President Lyndon Johnson nominated him in 1967. Marshall had helped paint this impression in an August 1966 speech, while he was Solicitor General of the United States, given at a St. Louis black social fraternity by characterizing the ideology of the black power movement as “Jim Crow thinking” that had nothing to offer Negroes except violence.

The accusations made against Sotomayor are not the overt racism of the past. Instead, the charge is that she will not be objective because she is sensitive to Hispanic issues. In the words of Senator Jeff Sessions at the confirmation hearings on July 14, 2009, “Call it empathy, call it prejudice or call it sympathy, but whatever it is, it’s not law. In truth, it's more akin to politics, and politics has no place in the courtroom.”

Speaking to her detractors and the country as a whole, Sotomayor defended herself by asserting that: “The context of the words that I spoke have created a misunderstanding, and I want... to give everyone assurances, I want to state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. . . . I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.”

This all sounds impressive. Sessions sounds like the country is past old prejudices and Sotomayor sounds like she won’t engage in new ones. Certainly to avoid violating the principle of stare decisis decisions must be governed by precedents. And yet that statement deserves realistic qualification.

Is it really true that judges do not bring personal sensitivities to the bench? In a 1927 Harvard Law Review article, the future Justice and then Professor Felix Frankfurter asserted that the Equal Protection and Due Process Clauses lead to differences of opinion that require some personal interpretation. As he put it, “The words of these provisions are so unrestrained by their intrinsic meaning as well as by their history and traditions, that each Justice is impelled to depend upon his own controlling conceptions, which are in turn bound by his experience and imagination, his hopes and fears, his faith and doubts.” There is little doubt in my mind, for instance, that Justice Ruth Bader Ginsburg’s opinion in the Virginia Military Institute gender discrimination case, VMI, or Justice Sandra Day O’Connor’s dissent in the Nguyen deportation case demonstrate a personal consciousness of gender discrimination. Justice Clarence Thomas’s dissent in Virginia v. Black, a case that in part upheld a Virginia cross burning statute, seems to include his personalized understanding of the KKK’s terror, having himself been raised in segregated Georgia

So, impartiality is the sine qua non of justice, but let’s not kid ourselves into believing that personality has no role in decisionmaking.

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