In the first of a revived Edie Adelman Political Awareness Fund lecture, editor and U.S. Supreme Court-watcher Dahlia Lithwick told more than 200 people that today’s high court is the most paradoxical in modern history.
Speaking at Congregation Shalom, Lithwick said that on the one hand, the court’s nine members are practically “gingerbread justices” in their educational, employment and life backgrounds.
They may look more diverse than those previous courts, Litwick said. After decades of mostly white male Protestants, this court has its first Hispanic American, its second black American, three women, three Jews, six Catholics and no Protestants.
Nevertheless, they all attended Harvard or Yale law schools, never held an elected office or served in the U.S. military; and most had similar employment histories as law clerks, attorneys, government employees and lower court judges, Lithwick said.
They have a “narrow bandwidth of life experiences” and “look like they were raised in underground labs” to be Supreme Court justices, she said.
This is to a great extent the fault of what has happened to the confirmation process, Lithwick contended. Justices are nominated by the President and confirmed by the Senate, as the U.S. Constitution has required since 1788.
But people from diverse life experiences that were confirmed in the past “are unconfirmable today,” Lithwick said. Even among today’s justices, Ruth Bader Ginsberg and Antonin Scalia have both said they would not be confirmed if nominated now, Lithwick said.
The results have not been totally bad, Lithwick acknowledged. “We have the smartest and best-schooled” Supreme Court that produces “very scholarly and thoughtful” but also the “longest opinions,” with abundant footnotes and separate concurrences, she said.
Nevertheless, this might also mean that the justices are “more and more divorced from life as the rest of us experience it,” Lithwick said.
This can be a problem in the court’s decisions, Lithwick said. For example, in some of the decisions involving campaign finance, like Citizens United vs. FCC (2010), Lithwick contended that many court members had “no sense of how elections work.”
Despite these similarities, however, the court is also “the most polarized in American history,” Lithwick said.
Five justices were appointed by Republican/conservative presidents, four by Democratic/liberal presidents; and they have for the most part displayed the ideological bent of their appointers.
That contrasts with past justices like David Souter (served 1990-2009), appointed by Republican President George H. W. Bush, but who surprised people with many decisions, Lithwick said.
In addition, the justices have tended to surround themselves with friends, clerks, news media and journals that agree with their ideological orientations, Lithwick said.
This contrasts with past justices who often used to hire deliberately clerks who held opposing views so they would help the justices test their ideas and reasoning, said Lithwick.
The result is a severely divided court, said Lithwick. Even though some justices claim that most decisions are made with 8-1 or 9-0 votes, Lithwick said that on certain topics — affirmative action, voting rights, gun rights, abortion, religious freedom — there have been “slews of 5-4 decisions.”
Moreover, today’s justices have been quick to accuse opposing justices of “blindness” and “failure to understand,” Lithwick said. Some justices have read such accusations aloud from the bench, she said.
“This really scares me,” said Lithwick. For one, it means that “we have come to substitute our conversation about race, gender and ideology for real diversity of opinion and life experiences,” she said.
It also means there is an apparent “failure of empathy” on the court, and increasing view that empathy is not a good quality and one that a justice should have, Lithwick said.
This split also appears to bring with it a decline in justices’ humility and willingness to admit ignorance of other people’s lives, Lithwick said.
An audience member asked about how the justices’ religions affect their work. Lithwick, who is Jewish, said, “It is considered impolite to suggest that religion has anything to do with their thinking,” and “I am loath to make sweeping judgments” on the topic.
Nevertheless, it has been clear in many instances that most of the Catholics have tended to vote one way and the Jews the other, she said. “The fact that we don’t write about” religious influences on the justices “is a problem,” Lithwick said.
Lithwick is a senior editor at Slate internet magazine and writes its “Supreme Court Dispatches” and “Jurisprudence” columns. She earned a law degree from Stanford University. She said she has been watching the U.S. Supreme Court for about 15 years.
The event was sponsored by Women’s Philanthropy of the Milwaukee Jewish Federation and the Edie Adelman Political Awareness Fund of the MJF’s Jewish Community Foundation; and co-sponsored by the MJF’s Jewish Community Relations Council and Lawyers’ Division, and by the National Council of Jewish Women-Milwaukee Section.
At the beginning of the event, Joan Lubar, president of Women’s Philanthropy, said the Adelman endowment will be funding one speaker for each coming spring.
Loading ...