High-court divide has a new dynamic
Sunday, October 3, 2010
The Supreme Court begins its new term Monday with unprecedented diversity among its members but also the potential for a split that would for the first time in decades reflect the partisan ideologies of the presidents who appointed them.
The defining story of the new term may be twofold: the rapid evolution of the court headed by Chief Justice John G. Roberts Jr. - the first of four new justices in the past five years - and what the change in justices means for the court's image and actions.
The most obvious will be the presence of three women. Justice Ruth Bader Ginsburg, who had hoped for such a day when she was confirmed 17 years ago, said it will send a powerful signal about the nation's governance when she and Justices Sonia Sotomayor and Elena Kagan take their places.
"The major difference is going to be the public perception of where women are in the justice system," the 77-year-old Ginsburg said in a recent interview in her chambers. "The three of us, we are here to stay.
"When the schoolchildren file in and out of the court and they look up and they see three women, then that will seem natural and proper - just how it is."
But another change could be problematic for a court that goes to great lengths to distinguish itself from the political branches of government.
Two solid members of the court's left, David H. Souter and John Paul Stevens, have departed in the past 16 months. But because they were appointed by Republican presidents, the court's conservative and liberal factions were never described as a partisan divide. That could change with their replacements being named by President Obama.
"I think rarely in the 20th century was there so obviously a partisan and ideological split on the court," said Barbara Perry, senior fellow at the University of Virginia's Miller Center of Public Affairs and a scholar who has studied the court. "There will be five appointees by Republicans who are very conservative or at least moderately conservative and four Democratic appointees who are liberal or moderate liberals."
At risk, said Columbia University law professor Nathaniel Persily, is the distinction the justices make about the court's status as something apart from the nation's increasingly fractious and partisan politics.
"A large segment of the population already looks at the court as being made up of political actors," said Persily, who noted that the change comes on the 10th anniversary of one of the court's most polarizing decisions, Bush v. Gore.
Additional damage could come if what he called "elite" commentators analyzing future decisions emphasize the court's partisan divide rather than its ideological differences.
"If, for instance, liberals start trashing the Supreme Court as just another Republican institution," Persily said.