By Burt Solomon
Sunday, May 31, 2009
Not a dry eye in the East Room. Who could doubt that it was Sonia Sotomayor's poignant personal story that persuaded President Obama to name the daughter of Puerto Ricans, raised in public housing, to the highest court in the land?
Yet for Obama, the choice was more than a matter of sentiment or even of social or political progress. Sotomayor's background can also give the president a certain confidence in how she might behave on the Supreme Court. For it is personal experience, more than any other factor, that seems to determine how a justice will rule.
How justices make up their minds has always been a mystery. Of the 6,000-odd words in the Constitution, as scholar Edward Corwin pointed out in 1941, only 150 "serve to articulate the bulk of our constitutional law." Most are simple enough for a child to understand, but artfully vague: liberty, general welfare, equal protection, due process. Reasonable people can understand them differently and often do.
So how does a justice decide what they mean? There is, of course, precedent. But a judge who wishes to follow precedent could face a choice of several, each plausible on its face, and must decide which to apply and which to ignore. Justices may take a shortcut by hewing to a philosophy -- an ideology, really -- of the law, so as not to think afresh about every new case.
But why does a particular justice favor one philosophy over another? Often, it has little to do with intellect. Justice Felix Frankfurter once explained, "The words of the Constitution are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading life."
Thus, John Marshall's presence at Valley Forge in the winter of 1777-78, as George Washington begged the states to rescue his ragged army because the Continental Congress lacked the authority to compel them to, helped make him a believer in a strong central government. Chief Justice Earl Warren's shame that his chauffeur slept in the car on an overnight jaunt to Richmond because no hotel would rent a black man a room surely contributed to Warren's passion for desegregating the nation's public schools.
Or consider the momentous eight weeks in the spring of 1937, when the court launched into a liberal judicial era.
During FDR's opening term in the White House, the Supreme Court was sharply, even hostilely, divided. The quartet of unflinching conservatives -- Willis Van Devanter, James McReynolds, George Sutherland and Pierce Butler -- were known as the Four Horsemen, alluding less to the biblical Apocalypse and its agents of destruction than to Notre Dame's starting backfield. They had all grown up amid the political and economic stability of the Gilded Age and remained 19th-century men. Three of them had made their fortunes on the Western frontier as lawyers for the railroads and other corporations. Once on the court, they steadfastly protected the strong against the weak, defending the rights of powerful employers against the government's efforts to intervene on the workers' behalf.
Equally tenacious in opposition stood three liberal justices, including Louis Brandeis and Benjamin Cardozo, urbanites by birth or by choice, all of them comfortable in the 20th century. More often than not, they attracted the vote of Chief Justice Charles Evans Hughes, a progressive Republican from New York.
That left the court's -- and the nation's -- fate in a single justice's hands. Owen J. Roberts, the youngest member and a loyal Republican, was a Philadelphia corporate lawyer who owned the fanciest townhouse on a block near Rittenhouse Square. He worried that the New Deal would make people "soft," and in 1935-36, he joined the Four Horsemen in toppling pillar after pillar of FDR's legislative efforts to help the victims of the Great Depression by, for instance, assuring farmers' subsidies, railroad laborers' pensions and workers' bargaining rights. This prompted FDR to propose "packing" the court by adding as many as six extra justices, to assure judicial deference to the electorate's -- and the president's -- will.
But suddenly, in 1937, Roberts changed sides. In three landmark cases involving three distinct constitutional provisions, Roberts reversed his interpretation in a way that authorized the government to ease the public's distress, notably by upholding Social Security for the elderly and the unemployed. What wags called the "switch in time that saved nine" begat the defeat of FDR's court-packing proposal and launched a constitutional revolution that ultimately led to the Warren Court and Roe v. Wade.
Roberts never explained his reasons for switching sides until after he retired, and then only obliquely. Near the end of the second of three deadly dull speeches at Harvard Law School in 1951, he said: "Looking back, it is difficult to see how the court could have resisted the popular urge for uniform standards throughout the country -- for what in effect was a unified economy." Two factors, that is, had moved him in 1937. One was reality -- "what in effect was a unified economy." By recognizing a factory as a cog in a truly national economy, rather than as a facility rooted in a single state, the court's newly liberal majority invoked the Constitution's interstate-commerce clause in allowing the federal government to step in and exert some control. The other was democracy -- "the popular urge," the people's will, as expressed by a Depression-stricken populace at the ballot box and to pollsters alike. He said not a word about the law.
Anyone who knew the first Justice Roberts could have guessed this. Not just a white-shoe lawyer, he was able to see the world from other people's point of view. He had been a trustee at historically black Lincoln University, chairman of the instruction committee at a school for orphaned boys and a special prosecutor in the Teapot Dome scandal. In Washington, he rode a streetcar to the court. He was both a city sophisticate and a gentleman farmer who worked his own land. A week before he first voted to switch sides, a farmer a dozen miles from his Pennsylvania farm killed a neighbor and wounded three others as they arrived for an auction of the man's possessions, intended to satisfy a $75 debt he might have avoided had Roberts voted to uphold the New Deal's agricultural subsidies. Soon Roberts, an ordinary man as justices go, allowed reality to intrude, and a lawyer's lawyer became a justice.
The parallels with the current court are astonishing. Chief Justice John G. Roberts Jr., the son of a corporate executive who has consistently ruled in favor of corporate defendants against individual plaintiffs, has shown how biography can be jurisprudential fate. His court may well have the opportunity in a depressed economy to strike down far-reaching laws enacted by a lopsidedly Democratic Congress and a popular Democratic president. Already there are murmurings of another court-packing venture if the Roberts court tramples on the electorate's will. Again, the court is divided between four conservatives and four liberals. And the swing vote, Anthony Kennedy, is -- much as the first Roberts was -- a country-club Republican who has shown a capacity to become something different.
On a bench full of former appellate court judges inclined to take a legalistic approach to the law, Sotomayor may be expected to bring the messy reality of Americans' lives to bear on the court's jurisprudence. Her gritty upbringing and her years as a savvy trial judge would surely inform her constitutional interpretation -- and perhaps the court's. Any senator or citizen who hopes to divine how a prospective justice will perform on the bench would be wise to pay less attention to what the nominee says or has done, and more to who she is.
Burt Solomon, a contributing editor to National Journal, is the author of "FDR v. The Constitution: The Court-Packing Fight and the Triumph of Democracy."