I was so struck by the number of important decisions Justice Scalia wrote this term that I asked Justice Ginsburg about his record when I interviewed her this week. (Here’s the news story covering other topics.)
Sitting in the courtroom the last two days, I was reminded of how profoundly the Court is split 5-4, conservatives-liberals, on cases that really matter. The divide was evident during oral arguments in the Arizona campaign finance dispute Monday and in the gigantic Wal-Mart job-discrimination class action fight Tuesday. And one of most compelling moments along these lines came Tuesday morning when Justice Ruth Bader Ginsburg read aloud her dissenting opinion from a decision in which the five-justice conservative majority ruled that a former Louisiana Death Row could not sue prosecutors who had failed to turn over blood evidence that could have shown his innocence.
Justice Ruth Bader Ginsburg opened a speech at the American Bar Association in San Francisco this week by observing, “I have lived long enough to see great changes in our profession.”
A question I’ve heard many times in my travels this summer is how much longer Justice Ginsburg, age 77, a cancer survivor and now a widow, will serve. Watching Justice Ginsburg on Monday (see the ABA video here) and following her activities since the death of her husband, Martin, I believe she will not step down in the next two years and is ready for the long haul, eager to see more changes in the law and profession.
I was reminded twice in the past week of the culture of notes and letters at the Supreme Court. When I spoke to a group of mid-career journalists at the National Press Foundation on Monday, a reporter asked who at the Court I would call or e-mail if I wanted to interview a justice. I said I often wrote a letter to the justice detailing my request. “A letter?” she said with disbelief and a tone of who-does-that-anymore? But this is an old-fashioned bunch and that is how they regularly communicate with each other and the outside world. Many of them e-mail and even text now, but they still write letters — handwritten letters on heavy, engraved stationery.
When I asked Justice Scalia in an interview last year about his combative style during oral arguments, he defended himself by making comparisons with other justices. “I don’t think it’s true that I am the most talkative,” he said, adding that such distinction would go to Justice Breyer, who asks long hypothetical questions. Then Scalia became more animated and said, “You ever hear Ruth excoriate somebody who is arguing a … case? She can be really tough.”
I know exactly where I was when I first saw the headline of an ABC news story earlier this month that said, “White House Prepares for the Possibility of Two Supreme Court Vacancies.” I was in the San Francisco radio studio of Ronn Owens about to go on the air to talk about Justice Scalia, the Citizens United case and current term. Owens said the ABC story had just appeared on-line that February 4 morning and predicted the retirement subject would draw calls. “Two vacancies?” I said doubtfully. “Really?” As people who have since read the posting by longtime ABC producer Ariane de Vogue know, it said: “Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health.”
As we get ready to enter 2010, Supreme Court watchers – living in a tight and sometimes unhelpfully focused world (see 2005, below) — already have been considering who might be next for the Court. In the last two weeks, I have heard the question asked at holiday parties, during dinners and in private conversations. The most likely scenario is that Justice John Paul Stevens, who turns 90 in April, will announce his retirement in the spring, and that the Obama administration will work with a list that begins with the also-rans from spring 2009 and is expanded with other women and, likely this time, a few men. When Sonia Sotomayor was chosen last May to succeed David Souter, President Obama was determined to add a second woman justice to the nine-member bench and did not interview any male candidates. Some of the very premature discussion among Court insiders these days has centered on the current chances of candidates from the 2009 short-list: Would Homeland Security Secretary Janet Napolitano be a less likely choice because of fallout from the Christmas Day bombing plot involving a Nigerian student allegedly linked to al-Qaeda and her comment that “the system worked”? Have Solicitor General Elena Kagan’s arguments before the Court helped her chances? Would Appeals Court Judge Diane Wood, who turns 60 next July, be less likely now because of her age? Generally, I should note, President Obama has not been seeking younger candidates for the federal bench as GOP predecessors Ronald Reagan and George W. Bush did.
From Miami to Milwaukee, one of the most frequently asked questions I’ve fielded in recent weeks relates to how Scalia’s Catholicism influences his rulings. This is a touchy area but clearly one that fascinates people. The question is increasingly asked, too, because there are now six Catholic justices on the Supreme Court. Along with Scalia, they are Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor.