john roberts

Pretty good stuff from Jeffrey Toobin (author of The Nine) on how Roberts steers the now quite conservative Supreme Court. It's a good read but hardly surprising - would anyone have expected Roberts, a graduate of the Reagan administration who faithfully represented George W. Bush in Florida in 2000 to be anything but strictly conservative? I think its an interesting read if only to understand the motivating factors behind Roberts' decisions - a lot of it comes down to his hesitance to have the Court involved in constructing any sort of policy. He certainly feels that the role of the judiciary is strictly to uphold laws put into effect by legislators, a position that entrenches him firmly against any idea of activism. His stance against affirmative action, asserting equivalance between forced segregation and forced integration is quite telling (I happen to agree with Breyer). In this way, it makes Obama's statement following Souter's retirement more telling - that his view of the role of the judiciary is not in line with the Robers/Rehnquist view:

Obama is the first President in history to have voted against the confirmation of the Chief Justice who later administered his oath of office. In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart. “It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak,” the Senator said. The first bill that Obama signed as President was known as the Lilly Ledbetter Fair Pay Act; it specifically overturned the interpretation of employment law that Roberts had endorsed in the 2007 case.

Certainly, debates on the the new nominee (whoever it is) will be quite interesting, and I wonder if we'll hear any peeps from current sitting justices. Probably not.

david souter retires

I don't claim to know too much about constitutional law, and I would further admit that 90% of what I know about the current Supreme Court justices comes from reading Jeffrey Toobin's The Nine (which I highly recommend). It's probably not very surprising that Souter was one of my favorites (I'm certainly more liberal when it comes to constitutional matters than when it comes to, say, fiscal matters). I'll leave it to Ezra Klein to bid him a fond farewell, and speculate on whether term limit for Supreme Court justices might be a good idea. Meanwhile, I'll quote from Souter's furious, passionate dissent in Bush v. Gore as tribute to his impressive career.

What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

EDIT: here's salon.com's top 10 possible supreme court replacements.