The court's federalism revolution stalled, while the revival of property rights, which appeared to be taking off not long ago, crashed and burned on a riverbank in New London, Conn....
Justice Stephen G. Breyer displaced Justice O'Connor at the court's center of gravity, casting the fewest dissenting votes - 10, to Justice O'Connor's 11 - in the 74 cases that were decided with full opinions.
As the Rehnquist Court ended a 19th year and appeared poised, unexpectedly, to begin a 20th, it was almost as if a constitutional centripetal force had been at work in recent years, pulling the court back toward the middle in many areas of its docket, including federalism, affirmative action, religion and abortion. The result frustrated conservatives and raised the stakes for the appointment of Justice O'Connor's successor.
The court's six discrimination cases from this past term provide an example. Three were brought under the Constitution's guarantee of equal protection, and the others required an interpretation of three different federal statutes.
I think there really is "a constitutional centripetal force" that operates on the minds of the individuals that find themselves on the Court.
What does this say about whom Bush should pick to replace O'Connor? I think it will be hard for the newcomer to avoid the seductions of the center. The temptation to yield to the embrace of Stephen Breyer and Anthony Kennedy will be quite strong. But if Bush remains true to his campaign statements -- and why doesn't he owe that to his supporters? -- he will appoint a hardcore conservative who can resist the centripetal force. In so doing he will only increase the effect of the centripetal force on Justice Kennedy, transforming him -- as I said last Friday -- into a reliable liberal.
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I think that both you and Greenhouse are correct on the centripetal force of service on the Court.
The reason for this, I believe, is not just the gathering wisdom of passing years and the freedom from facing electorates.
I think it also stems from the sense of obligation that justices have for the preservation of the legal system and its role in a society that seems to undergo constant change.
As the final arbiters of what the Constitution does and doesn't say, most justices opt to consider the likely impact of their decisions on the future, doing so with an appreciation of the past. O'Connor reflected well this tendency toward what I would call, "a practical conservatism."
In my own field (I'm a pastor), the writer of the Gospel of Matthew is sometimes called "the scribe of the New Covenant." One of the themes of Jesus' ministry to which Matthew constantly returns is that the Christian believer is sort of like a judge: She or he must look at moral decision-making with both an appreciation for the unique situations involved and in light of what God's people have decided in preceding generations. There can be no rote application of God's law without a regard for the circumstances extant in specific lives and times. Justice happens when the respected letter of the law is leavened by common sense and compassion.
Every Christian, Jesus says, is deputized to be His emissary: Whatever we bind on earth will be bound and whatever we loose will be loosed. In other words, we're to make judgments about what we deem right and wrong in our own lives and among ourselves, in a relationship of mutual accountability, within the Church. It's an awesome and, to me, frightening responsibility, one with which I have never felt comfortable.
I think the Supremes sense a similar charge in their work on the Court. They must heed the law and precedent, of course. But they must also apply those things in the best ways to new situations and cirumstances.
The Court, for example, is wrestling these days with the whole issue of intellectual property rights in the context of the new information age and its technologies. Some would say that they're wrestling pretty ineffectively. But the point is that they will probably continue to do so with both a strong reliance on precedent and a common sense consideration of changed circumstances...because that's their job. They go into uncharted territory with old maps and figure out how to update the maps in light of the new things they learn.
O'Connor seems to have understood this subtle art of reliance on both precedent and common sense in facing the times. I agree with you that Breyer seems to understand it as well.
This means that while their brand of conservatism may not match the changing meanings of that label in a political sense, no matter what their philosophical attachments, they tend to tweak constitutional law, rather than giving it makeovers. They seem to have decided that too much is at stake to indulge hobby horses of any kind.
Such case-by-case pragmatism isn't flashy, but it does help a society ease forward through changing times with less disruption and lurching that would otherwise be the case.
I thought you would appreciate this comment by Joseph Knippenberg on No Left Turns:
"And here’s Ann Althouse, one of Glenn Reynolds’ favorite bloggers, reviewing a book arguing for the election of Supreme Court justices:
If we really thought constitutional formalities needed to change to reflect real practice -- Davis’s bedrock assumption -- we would have to argue for the abolition of judicial review altogether.
I’m tempted to agree: those on the Left and the Right who regard these principally as political appointments ought to argue for the abolition of judicial review altogether. Mere result-oriented jurisprudence, whoever practices it or urges it, aims at the overthrow of our constitutional system, for it rests ultimately on the insistence that there is no limit to politics, either in the constitution or in our natural rights."
I think, though, that O'Conner, Kennedy and Breyer are not conscious "centrists" or influenced by "fashionable elite" thought but rather strive for the "middle way" or, more accurately in their minds, the "better way". O’Conner, Kennedy, and to some extent Breyer, do not think in a conventional "liberal" or "conservative" pigeonhole, but look for pragmatic solutions to difficult societal problems which in their view, the Constitution neither prohibits nor requires. All three of these Judges have a strong belief in their ability to analyze and understand both the problems presented, and the Consititution’s interstices.
This is a different kind of centrism, I think, than the kind Burger, Blackmun, Stephens and Souter followed, which seem at times to be effected by the Greenhouse effect, a desire to be appreciated by the intellectual elite.
This argument that moderation is good disturbs me. I mean how is it qualitativly different from "Well he makes the trains run on time." as a good argument for fascism?
Ann Althouse said "The temptation to yield to the embrace of Stephen Breyer and Anthony Kennedy will be quite strong."
That is without a doubt the creepiest sentence ever written about the Supremes.
Scipio: And I totally meant to do that.
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