Right about at the 100-day mark, President Obama already has his opportunity to make a Supreme Court appointment, with the impending retirement of Justice David Souter. It seemed likely that one of the justices would leave soon, though bets were on Justice John Paul Stevens, who’s been around much longer (since 1975, more than 33 years now), or Justice Ruth Bader Ginsburg, who’s recently been ill. Instead, we see the retirement of a healthy, not-so-old juror — Justice Souter will soon turn 70 and is younger than five of the other justices — who just wants to go home and relax.
Most of the news reports talk about how Souter was a “surprise” to the conservative side, for being less conservative than the president who appointed him (George Bush the First) and the Republicans who supported the appointment had hoped.
He may, indeed, have been a surprise to them, but as I look back on the the court and the decisions he was key to, I see him more as someone who put consistency and stability above ideology, and as someone who stood his ground as the court shifted around him. He did not, for example, vote to retain central aspects of the Roe vs Wade decision because he liked the decision, but because he thought it important to maintain the stability of the court’s decisions over time.
A look at the composition of the court is also in order. Note that Jimmy Carter got no appointments during his single term in office, and so seven of the sitting justices were appointed by Republican presidents — only Justice Ginsburg and Justice Stephen Breyer, who came during President Clinton’s administration, were appointed by a Democrat.
And yet we have Justice Souter and Justice Stevens (a Ford appointee) considered solidly on the “liberal” side of the court.
Yet that liberal side is not the side on which Justices Thurgood Marshall or William Brennan sat, for example. And yet note that Justice Brennan, considered very liberal, was appointed by President Eisenhower (a Republican)... and that Justice Byron White, a Kennedy appointee, dissented from ground-breaking liberal decisions, including both Miranda and Roe.
Justice White’s replacement by Justice Ginsburg has been the only shift back to the left for the current court. Apart from that, each change, from President Reagan’s replacement of Potter Stewart (of "I know it when I see it" fame) with Sandra Day O’Connor, to George Bush the Second’s replacement of Justice O’Connor with Samuel Alito, has moved the court more and more to a radically conservative position.
It’s no surprise that two justices appointed as “conservatives” to a more liberal court turn out to be “liberals” on an increasingly conservative court.
I hope that President Obama takes the opportunity to appoint a true liberal to the court. Not a radical liberal, and it seems clear that he wouldn’t want to anyway. But someone who will begin to move the court back to the center, where it belongs. That won’t happen with an attempt to please everyone with the appointment of a “centrist”.