David Souter

Supreme Court Justice Predictability Not So: Nine Cases From Felix Frankfurter To David Souter

As the hearings continue on the nomination of Circuit Court Judge Brett Kavanaugh to the Supreme Court, the question has arisen over whether Supreme Court Justices are predictable in their evolution on the Court.

The argument is that most Supreme Court Justices are “pegged” when they are considered for the Court, and do not disappoint the President and the party which nominated them for the Court.

But history actually tells us that there are quite a few exceptions to this perceived thought.

Felix Frankfurter (1939-1962), appointed by Franklin D. Roosevelt, migrated from an earlier liberal, almost radical view, to a clearly conservative view, disappointing many Democrats in the process.

Earl Warren (1953-1969), appointed Chief Justice by Republican Dwight D. Eisenhower, and thought to be a conservative oriented person, turned out in the mind of many Republicans “a flaming liberal”, totally surprising Eisenhower and many pleased Democrats and liberals.

William Brennan (1956-1990), appointed by Eisenhower, and a rare Catholic on the Court, and thought to be a conservative, turned out to be even more liberal in his jurisprudence, and lasted twice as long as Warren on the Supreme Court, stunning many conservatives and Republicans.

Byron White (1962-1993), appointed by John F. Kennedy, was thought to be a liberal, but was a consistent conservative in his years on the Court.

Harry Blackmun (1970-1994), appointed by Richard Nixon, started off as a conservative, along with his so called “Minnesota Twin” and colleague, Chief Justice Warren Burger, but veered sharply left more and more, diverging dramatically from Burger as the years went by, and honored by liberals as a great Supreme Court Justice.

John Paul Stevens (1975-2010), appointed by Gerald Ford, was thought to be a moderate conservative, but dramatically moved left in his jurisprudence, and remained on the Court for 35 years, third longest of any Justice in history, retiring at age 90, but still active at age 98 (the longest lived Justice ever), and still promoting liberal viewpoints.

Sandra Day O’Connor (1981-2006), appointed by Ronald Reagan as first woman on the Court, turned out to be far less conservative, veering toward the center, and seen as a balance on the Court, unpredictable during her tenure on the Court.

Anthony Kennedy (1988-2018), appointed by Reagan, and just retired, thought to be a hard line conservative, turned out to be the second “swing” vote with O’Connor, and then the true “swing” vote on the Court, joining the liberal side one third of the time.

David Souter (1990-2009), appointed by George H. W. Bush, was thought of as moving the Court to the Right, after William Brennan retired, but many Republicans and conservatives were severely disappointed in his unpredictability, and often his siding with the liberal view on many issues, more than one would have expected.

Notice, however, that seven of these nine cases, all but Frankfurter and White, were of Republican appointments that turned out to be much more “liberal” than one might have imagined, with only Frankfurter and White turning out to be more “conservative” than perceived at the time of their nominations to the Supreme Court.

Chief Justice John Roberts To Become The New Balance On The Future Supreme Court?

Chief Justice John Roberts has been on the Court for 13 years now, and he is generally perceived as a conservative.

But he has surprised some conservatives, as when he kept ObamaCare (the Affordable Care Act) alive in 2012.

Also, Roberts has often stated by the doctrine of “Stare Decisis”–to stand by things decided”–although he has not been consistent on this over the years.

The odds of Roberts siding with the liberals on the Court for the image of the Court named after him as Chief Justice, is a thin measure of what kind of balance he might present on the future Supreme Court.

It seems likely that on balance, he will be “number 5”, in the middle, but that middle will be much farther to the Right than Anthony Kennedy or Sandra Day O’Connor represented.

But then again, Justices have surprised their Republican Presidents who appointed them, as with Earl Warren and William Brennan under Dwight D. Eisenhower; Harry Blackmun under Richard Nixon; John Paul Stevens under Gerald Ford; O’Connor and Kennedy under Ronald Reagan; and David Souter under George H. W. Bush.

The best estimate is that no one should count on John Roberts avoiding “his” Court from being regarded as the most right wing, conservative Court since the time of Warren G. Harding. Calvin Coolidge, and Herbert Hoover nine decades ago, before the Great Depression and New Deal began the transformation of constitutional law.

Neil Gorsuch On Supreme Court A Fateful Turn To The Right, Unless He Surprises, As Other Republican Appointments In Past Have Done

Seven Republican appointments to the Supreme Court since 1953 turned out to be less conservative than expected, so the question that arises, as Neil Gorsuch, appointed by Donald Trump, becomes the 113th Supreme Court Justice in American history is, will Gorsuch follow that lead?

At this point, it seems highly unlikely, but there is no way to know how a person on the Court, who potentially could be there for 35 years, until 2052, will react as cases come before him. If he has an open mind, he could surprise us, as history records for appointees of Presidents Dwight D. Eisenhower, Richard Nixon, Gerald Ford, Ronald Reagan, and George H. W. Bush prove.

Chief Justice Earl Warren and Associate Justice William Brennan, appointments of Eisenhower, thought to be conservatives, turned out to be path breaking liberals on the Court.

Associate Justice Harry Blackmun, appointed by Nixon, proved to be the same, as did John Paul Stevens, appointed by Ford.

Associate Justices Sandra Day O’Connor and Anthony Kennedy, chosen by Reagan, proved to be the swing vote,often siding with the liberal side of the Court, despite their generally conservative bent.

And David Souter, appointed by the first Bush, also proved to be a surprise on his vote much of the time.

So we will see over the next few years if Neil Gorsuch surprises.

The Changing Supreme Court In 2017: A Move To The Left That Will Last To The 2040s Or Beyond!

With the reality that Democrat Hillary Clinton has a clear lead for the Electoral College, the likelihood of a liberal majority Supreme Court seems more certain in 2017 and beyond.

News that Justice Clarence Thomas might retire at age 68 in the next year is encouraging in that regard, but even if he does not, as his wife has just contended, the likelihood is of FOUR appointments to the Court outside of Thomas, with two of them (Antonin Scalia dead and Anthony Kennedy retiring) being a movement to the left, making at the least a 6-3 Court by 2020. If Thomas also leaves, it would be a 7-2 Court, which would have a long range effect to the 2040s or beyond!

The Supreme Court has had a Republican and conservative majority for 44 years, since 1972, so it is about time to right the balance and make for a revival of the Chief Justice Earl Warren Court, which had an effect for 16 years, and continued to influence, if not control the Court, with the extended service of Justice William Brennan and Justice Thurgood Marshall.

Fortunately, Justice Harry Blackmun, Justice John Paul Stevens, and Justice David Souter, all appointed by Republican Presidents, often joined the few liberals left on the Court, and prevented the Court from going even further Right than it did in those 44 years.

But there is a desperate need for a tilt to the left on so many issues, so that is the most important reason for the election of Hillary Clinton to the White House in November!

Republican Presidents And Ten Exceptional Supreme Court Appointments Since 1900!

Republican Presidents have contributed many outstanding Supreme Court Justice from the time of Theodore Roosevelt through the Presidency of George H. W. Bush, from 1902 through 1990.

Ten Justices can be seen as having a very positive impact on the Court, often surprising the Republican Presidents who appointed them, as many could have been appointed by Democratic Presidents in retrospect!

These Justices include:

Oliver Wendell Holmes, appointed by Theodore Roosevelt, and serving from 1902-1932.

Harlan Fiske Stone, appointed by Calvin Coolidge, and serving as Associate Justice from 1925-1941, and then elevated to Chief Justice by Franklin D. Roosevelt from 1941-1946.

Charles Evans Hughes, originally appointed by William Howard Taft, and serving as Associate Justice from 1910-1916, resigning to run as the Republican Presidential nominee in 1916, and then, reappointed, now as Chief Justice by Herbert Hoover, and serving from 1930-1941.

Benjamin Cardozo, appointed by Herbert Hoover, and serving from 1932-1938.

Earl Warren, appointed by Dwight D. Eisenhower, and serving as Chief Justice from 1953-1969.

William Brennan, appointed by Dwight D. Eisenhower, and serving from 1956-1990.

Harry Blackmun, appointed by Richard Nixon, and serving from 1970-1994.

John Paul Stevens, appointed by Gerald Ford, and serving from 1975-2010.

Sandra Day O’Connor, appointed by Ronald Reagan, and serving from 1981-2006.

David Souter, appointed by George H. W. Bush, and serving from 1990-2009.

Any scholarly listing of great Supreme Court Justices would certainly list Holmes, Warren, Brennan, Blackmun, and possibly Stevens in the top ten Supreme Court Justices of all time, a total of 112 Justices in the history of the Supreme Court up to now. And Stone, Hughes, Cardozo, O’Connor, and Souter would all rank in the next ten, making this list part of the top 20 out of the entire list. And Stone, Hughes and Warren served as Chief Justices, arguably the three best Chief Justices, following the greatest Chief Justice of all time, Chief Justice John Marshall (1801-1835)!

All of this above list, except Cardozo, served for a long time, from a low of 16 years for Warren, up to 35 for Stevens, and even Cardozo is rated as being an outstanding Justice, despite his short period on the Court.

So the Republican Party and Presidents, often by misjudgment or error, selected many of the greatest Supreme Court Justices in its history in the 20th century!

The Supreme Court Of 2014 Most Right Wing Since Early 1930s!

The Supreme Court has been controversial at different times in its history, but the present Court of 2014 is considered the most right wing Court majority since the early 1930s!

Since the Warren Court, which began in the 1950s, we have never had such conservative Justices as we have now.

Three of the present Justices are among the most conservative ever to sit on the Court, including Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito.

If one adds former Chief Justice William Rehnquist and former Associate Justice Lewis Powell, we have the five most conservative Justice since 1953, a period of 60 years.

Not much behind is Chief Justice John Roberts and Associate Justice Anthony Kennedy, both capable of surprises in their votes and rulings, but still most of the time joining Scalia, Thomas, and Alito.

These seven named Justices were all picked by Republican Presidents–two by Richard Nixon; two by Ronald Reagan, plus his promotion of Rehnquist to the Chief Justiceship; one by George H. W. Bush; and two by George W. Bush.

But also, Republican Presidents have selected Justices who turned out to be quite moderate, and even sometimes liberal, including Chief Justice Earl Warren and Associate Justice William Brennan by Dwight D. Eisenhower; Chief Justice Warren Burger and Associate Justice Harry Blackmun by Richard Nixon; John Paul Stevens by Gerald Ford; Sandra Day O’Connor by Ronald Reagan; and David Souter by George H. W. Bush.

Since 1953, Republicans have controlled the White House for 36 years, while Democrats have had control for 25 plus years, and that has caused the right wing tilt of the Court, which could have been even more so, if not for the surprises presented by the seven “less” conservative, and some “quite liberal” Justices listed in the above paragraph!

So the Republicans have chosen 17 of the past 25 Justices since 1953, with John F. Kennedy picking two, but one (Byron White) turning out to be conservative, and Arthur Goldberg leaving the Court after only three years, due to the urging of Lyndon Johnson that he become United Nations Ambassador. Johnson selected Abe Fortas to replace Goldberg, but he stayed on the Court for only four years, and left the Court under the cloud of scandal. The first African American Justice, Thurgood Marshall, would go on to serve as a champion liberal for 24 years from 1967 to 1991.

Jimmy Carter would have no appointments to the Court in his four years in the White House, the only such situation in the 20th century, and one of only four Presidents to have had no appointments, but the only one to have a full term in the Presidency. The other three Presidents were William Henry Harrison (one month); Zachary Taylor (16 months); and Andrew Johnson (almost a complete term, but so unpopular that the Senate would not confirm any Court appointments in his time in office).

Bill Clinton selected Ruth Bader Ginsburg and Stephen Breyer; and Barack Obama has chosen Sonia Sotomayor and Elena Kagan as his appointments, so far, on the Supreme Court. So note that out of the eight appointments by Democrats in the Presidency, three have been women; five have been Jewish; one has been African American; and one has been Puerto Rican, with only Byron White being a typical white Anglo Saxon Protestant.

The question has now arisen whether Ginsberg, and maybe even Breyer, should retire, and guarantee that Obama could replace them, with the concern that the Senate might go Republican in November, making any Court appointment nearly impossible due to gridlock and stalemate. There is also fear that were the Republicans to win the White House in 2016, which is highly unlikely, that then the Court would be ever more right wing reactionary than it already is.

It is a calculated gamble for Ginsburg and Breyer to remain on the Court for now, but it is not uncommon for Justices to retire at very advanced ages–such as Blackmun at 85 and Stevens at 90!

So do not expect that either will retire, but with a good chance of Democrats retaining the Senate majority in 2014, or regaining it on the back of the Democratic Presidential nominee’s expected major victory in 2016!

The Dangers Of The Supreme Court Run Amuck In Favor Of Wealthy And Corporations!

The Supreme Court is totally out of control, with its new decision on having no limits on campaign spending by wealthy donors, added on to the Citizens United Case of 2010, and the limitation of voting rights in a 2013 decision.

Chief Justice John Roberts has solidified a five member GOP majority to destroy all attempts to prevent corporate and wealthy people from controlling the political system, an effort pursued from the time of Theodore Roosevelt a century ago through Senator John McCain and Senator Russ Feingold in the 1990s and early 2000s.

That is all for naught now, and shows the dangers of a runaway, reckless, right wing radical Court!

This is what made Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, Franklin D. Roosevelt, and Barack Obama criticize Court power, along with progressive reformers including Senator Robert La Follette of Wisconsin, Senator George Norris of Nebraska, Senator Russ Feingold of Wisconsin, Senator Paul Wellstone of Minnesota, and Senator Bernie Sanders of Vermont!

This is the result of 13 Supreme Court nominees since 1960 by Republican Presidents, to only 8 by Democrats, and with two of those Democratic appointments (Arthur Goldberg by John F. Kennedy and Abe Fortas by Lyndon B. Johnson), only lasting three and four years respectively.

Of course, Republican appointments of Harry Blackmun by Richard Nixon; John Paul Stevens by Gerald Ford; Sandra Day O’Connor by Ronald Reagan; and David Souter by George H. W. Bush, turned out to be major surprises in their rulings, but we also ended up with some of the most reactionary and right wing radical appointments in all of American history with the appointments of William Rehnquist by Richard Nixon and the elevation of Rehnquist to Chief Justice by Ronald Reagan; Lewis Powell by Richard Nixon; Antonin Scalia by Ronald Reagan; Clarence Thomas by George H. W. Bush; and Samuel Alito by George W. Bush. The appointments of Chief Justice Warren Burger by Richard Nixon; Anthony Kennedy by Ronald Reagan; and Chief Justice John Roberts by George W. Bush, have been more of a mixed bag, sometimes good, and sometimes horrible in its effect on constitutional law!

Meanwhile, John F. Kennedy selected a mostly conservative Justice Byron White; Lyndon B Johnson selected Thurgood Marshall; Bill Clinton selected Ruth Bader Ginsburg and Stephen Breyer; and Barack Obama selected Sonia Sotomayor and Elena Kagan, but sadly, their influence in the last four of the five names listed, has been mostly in being the opposition, sometimes vehement in nature!

The effect on the future of American democracy is massive, with this right wing Court majority, and the only hope is the eventual retirement of Scalia and Kennedy, and hopefully, continuation of a Democratic Senate and President for the rest of the decade, so that the Court changes direction in the future!

The Future Democratic Party Majority On The US Supreme Court

When one looks at the Supreme Court in recent decades, it is clear that it has been a conservative Supreme Court, dominated by Republican appointments, and it has shown in such decisions as the Citizens United Case of 2010, and the partial repeal of the Voting Rights Act in 2013, along with numerous other such cases tilted to the right side of the political spectrum.

So for progressives and Democrats, it has been a difficult time, wondering how the Supreme Court can be returned to the glorious era of the Warren Court and Burger Court from 1953-1986.

But there is the reality that the Supreme Court’s future for the Democratic Party and progressivism is very bright over the next decade, assuming what seems highly likely, that Hillary Clinton, Joe Biden or some other Democratic Presidential nominee will have the electoral college advantage for 2016, and likely for the following 2020 Presidential election.

If indeed the Democrats keep the White House beyond 2016, time and age will turn the Court into a majority Democratic Party appointed Court for sure!

History tells us this fact: If a party keeps control of the White House for an extended period of time, the Court becomes more than ever reflective of that political party.

So, for example, from 1933-1953, we had 20 years of Franklin D. Roosevelt and Harry Truman in the White House, and a total of 13 Supreme Court appointments, all by these two Democratic Presidents, helping to shape the future Court, with a few “liberal” appointments by Republican President Dwight D. Eisenhower (Earl Warren and William Brennan), insuring a continuation of that trend.

But it can be said that from 1953-2013, sixty years of history, the Republicans held the White House for a total of 36 years to the Democrats’ total of 24 years.

In those 60 years, the Republican Presidents made 18 appointments to the Supreme Court, to the Democratic total of just 8 appointments, more than a 2-1 majority. While Republican appointments included Warren, Brennan, Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, and David Souter, all quite liberal appointments, even so it still meant that 12 Republican appointments were quite conservative or VERY conservative, so the Supreme Court represents a strongly Republican flavor.

But now, we have four aging Supreme Court Justices–Ruth Bader Ginsberg (80 this year), Antonin Scalia (77 this year), Anthony Kennedy (77 this year), and Stephen Breyer (75 this year), and to believe that by 2020, that any or all of these members of the Court will be still serving, seems quite unreasonable, as they would be ranging between 82 and 87 by the year 2020!

And Justice Clarence Thomas, although claiming he will stay on the Court for 43 years, until age 86, would be 72 in 2020, and Samuel Alito would 70 in 2020.

No one is saying that either Thomas or Alito will have left the Court, but if the four elderly Justices have left, they would all be Democratic Party appointments if the Democrats keep the White House, highly likely, and that would mean SIX of the nine members of the Court would be Democratic appointments, including Sonia Sotomayor and Elena Kagan.

Only Thomas, Alito, and Chief Justice John Roberts would be Republican appointments in the year 2020 under this scenario!

So, for Democrats and Progressives, there is hope for a very different Court over the next decade and beyond!

The Republican Attack On The Constitution: A Threat To American Democracy!

The Republican Party loves to assert that the Democrats, and progressives in particular, are attacking the Constitution, and that they are the experts on the Constitution.

So therefore, in this Presidential primary season, and in the party membership in Congress, there are statements constantly attacking the court system, anytime that a federal judge or court issues a decision against the conservative view of the Constitution. There are condemnations and calls to change the court system on a regular basis.

One would think that the Democrats and their progressive friends have dominated the courts in recent decades, which, of course, is the exact opposite of the truth!

One forgets that from 1969-2011, there have been only 15 years of Democratic control of the Presidency, as compared to 28 years of Republican control.

The vast majority of federal judges have been Republican appointments, as a result, and Republican Presidents have made a total of 13 Supreme Court appointments over those years, and Democrats have made only 4, two by Bill Clinton and two by Barack Obama!

But now,. Newt Gingrich calls for judges to be required to testify before partisan Congressional committees, a violation of the separation of powers, and a danger to an independent judiciary!

What it comes down to is that Newt Gingrich and all of the Republican opponents, with maybe the exception of Mitt Romney and Jon Huntsman, wish to create a court system that would move away from the path breaking changes that the Supreme Court brought about during the years of the Warren Court, Burger Court, and Rehnquist Court including:

Brown V. Board Of Education
Miranda V Arizona
Roe V Wade
University Of California V. Bakke
Lawrence V Texas

As it is, there are threats presented by the Republican growth of dominance on the federal courts to all of these issues–racial integration, rights of criminal suspects, abortion rights, affirmative action, and gay rights.

The Republicans will not be contented until there are reversals on all of these issues, and a return to the “good old days”, when minorities “knew their place”; police had unlimited rights over those they questioned or arrested; women had no control over their reproductive rights; minorities and women had disadvantages, as compared to white males, on educational and job opportunities; and gays were forced to remain “in the closet” and face open discrimination and hate without recourse!

So when the Republicans claim to understand what the Founding Fathers meant at the Constitutional Convention, they are forgetting that those esteemed leaders put into the Constitution the “Elastic Clause” to allow for expansion of the Constitution beyond the original document, in order to make the Constitution a “living document” adaptable to changing times.

The real threat is not what the federal courts have done in the past sixty years! It is the attempt of conservatives and the Republican Party to negate the great progress brought about the Supreme Court and lower courts in the past sixty years, and revert back to the years after World War II, when all of these great changes started slowly to evolve through courageous judges and Supreme Court Justices, including Earl Warren, William Brennan, Hugo Black, William O. Douglas, Thurgood Marshall, Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg and Stephen Breyer.