We’ll get to today’s case in a moment, but first, a few words about SCOTUS and expiration dates.
We have also seen no evidence that Justice Kennedy patterned himself after his predecessor, but it is remarkable how similar they were in locating themselves right at the center of the Court. Justice Powell was often a swing vote. If our affirmative action jurisprudence is a bit of a mess, some of the blame for that must go to Justice Powell, whose controlling opinion in the 4-1-4 landmark Bakke decision created a slippery standard that sprung from Powell’s idea of the perfect academic affirmative action program – the Harvard College admissions system. Even back in 1978, it was pretty obvious that the Harvard system was not quite the holistic, individual-respecting scheme that Powell portrayed. (The legal defense of U.Cal Davis Medical School’s affirmative action program was entrusted to the great Archibald Cox. During oral argument, Justice Blackmun asked whether the set-aside seats could be compared to athletic scholarships. Cox replied, “Well, I’m from Harvard … “ – laughter intervened – “I don’t know whether that’s our aim, but we don’t do it very well.”) Given the current lawsuit challenging Harvard admission policies, the Bakke compromise and its progeny seem even more fragile.
The story of how Powell came to be appointed to the High Court was told in Bob Woodward’s book, The Brethren. (We hear Woodward has another book out.) President Nixon was politically hobbled in 1972. In trying to fill an earlier SCOTUS vacancy, Nixon had two of his selections rejected by the Senate. Powell was an interesting choice. He was from Virginia, which fit in with Nixon’s southern strategy. But Powell would not fit into what we now consider the usual mold. He had never been a judge. (Black had been a senator, not a judge. Chief Justice Warren had also been a politician. Douglas headed the SEC. It used to be acceptable for Justices not have to have a judicial track record. Why the change?). Powell was a corporate lawyer. He represented the tobacco industry. He was a leader in the ABA. He wrote a famous memo about how corporate America should deal with a hostile media. There were plenty of reasons why Nixon would have liked Powell. But there was one important reason why Powell would be acceptable to Senators who weren’t enamored with Nixon: Powell was 64 years old. Woodward reported that a Senator waved a cigar and told Powell why he would be confirmed: “We think you’re going to die.” (Powell himself was not all that fired up to join SCOTUS. He had turned down an earlier offer. He did not think he had the constitutional law chops of a Douglas, Black, or Brennan. Plus, he was not eager for the huge pay cut.)
Recently John Oliver’s Last Week Tonight show argued for eliminating life tenure for judges. Oliver supported a proposal for staggered 18 year terms. (Powell served 15 years on SCOTUS.) Every four year presidential term would include an opportunity to appoint at least two SCOTUS justices. The system would permit reasonable turnover. It would avoid the dangers of a gerontocracy. It might somewhat reduce the temperature of SCOTUS confirmation hearings, since there wouldn’t be a multigenerational impact at stake. Such a change would require a constitutional amendment. Spoiler alert: it won’t happen. But while we’re just dreaming, we have another reason for cuddling up to this idea. When presidents harbor the hope of appointing a Justice who will support certain policies/rules for thirty years, that means they will select relatively young people. That elevate-them-when-they-are-young approach also offers the advantage of proffering someone with a limited paper record and a limited target area for skeptical senators. Thus, instead of a SCOTUS appointment being the capstone of a long, distinguished career, it is more and more conferred on jurists in mid-career. As we slouch toward dotage, we less and less like the idea of such important jobs going to juveniles. Frankly, we hate seeing presidents and Supreme Court Justices younger than ourselves. It is an annoyance almost as painful as being forced by some website to enter our birth year in a drop down menu, and scrolling down and down. And down.
Why are we pondering these issues at this moment? Obviously, the ongoing Kavanaugh kerfuffle is top of mind. We also find ourselves ruing life tenure when we read a judicial decision that seems gruesomely wrong-headed.
And now we get to today’s case.