Justice Brennan, Sexism, and Desegregation

OK, so admittedly over the break I geeked out on Supreme Court stuff. Majorly. I read a tome of a biography on now-deceased Supreme Court Justice William J. Brennan Jr. called Justice Brennan: Liberal Champion by Seth Stern and Stephen Wermiel. The book itself is an engaging and fascinating read and it made me wish that one day I have the opportunity to write such an interesting and well-written biography of someone admirable.

But Justice Brennan, as admirable as he was -- he was considered moderate when he joined, but eventually became one of the most reliable liberal votes on the Court -- he was by no means perfect. One of the points the authors take pains to describe is that Brennan, despite reliably voting on behalf of the rights of women and minorities, did little to integrate either into his professional or personal life in a meaningful way. He even once declared that he might have to resign if he had to serve on the Court with a women. (When Sandra Day O'Connor joined in 1981, Brennan did not, in fact, resign.)

They even describe during the early 1970s his reluctance to hire female law clerks, including distinguished UCLA law professor Alison Grey. When Brennan again rejected another female candidate on the basis of her sex, it took a letter from Brennan's former law clerk Stephen Barnett to convince Brennan to change his mind. Bennett argued that not only was Brennan surely headed toward a sex discrimination lawsuit, but that his bias was also inconsistent with his own opinions.

Bennett wrote: “your blanket refusal to accept a woman clerk is not just ‘sexist,’ and not just contrary to government policy; it seems to me that it is literally unconstitutional, under the decisions” Brennan had written or joined in. Brennan than hired his first female clerk, Marsha Berzon, who was appointed to the 9th Circuit Court of Appeals under former President Bill Clinton.

Likewise, though Brennan's opinions were key in desegregating schools (he preferred the word "desegregation" to "integration" which a friend who had recently traveled in the South made Southerners think of interracial marriage), his own life was quite segregated. He'd moved out of Newark before a large African American population had arrived, and when he moved to Washington to take his job on he Court, he lived in the very white neighborhood of Georgetown. Though he briefly attended a Catholic church started by African Americans who had been banned from another Catholic church, he stopped attending after a while. Brennan hired his first (and only) African American law clerk during his last term on the Court.

Brennan is probably like many liberals even today, who might advocate for progressive policies but find their own lives quite racially or even gender segregated. Sometimes it helps when someone else holds up a mirror for you.

Sotormayor on Abortion

Over at SCOTUSblog, Tom Goldstein actually reviews Sonia Sotormayor's opinions. First and foremost, he addresses her opinions on abortion:

Abortion Rights: Although Sotomayor has not had a case dealing directly with abortion rights, she wrote the opinion in Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), a challenge to the “Mexico City Policy,” which prohibited foreign organizations receiving U.S. funds from performing or supporting abortions. An abortion rights group (along with its attorneys) brought claimed that the policy violated its First Amendment, due process, and equal protection rights. Relying on the Second Circuit’s earlier decision in Planned Parenthood Federation of America, Inc. v. Agency for International Development, which dealt with a virtually identical claim, Sotomayor’s opinion rejected the group’s First Amendment claim on the merits. Turning to the plaintiffs’ due process claim, Sotomayor held that they lacked standing because they alleged only a harm to foreign organizations, rather than themselves. Sotomayor held that the plaintiffs did have standing with regard to their equal protection claim, but she ultimately held that the claim failed under rational basis review because the government “is free to favor the anti-abortion position over the pro-choice position” with public funds.

Souter retires, women dare to hope

Today over at RH Reality Check, I have a wrap-up of what Justice David Souter's retirement means for women's rights:

Jeffrey Toobin wrote in The Nine, his definitive book on the Supreme Court, that for the past several decades, "There were two kinds of cases before the Supreme Court. There were abortion cases--and there were all the others." And now with Justice David Souter announcing his retirement late last week, it is the first time a pro-choice president has had the opportunity to appoint a justice to the Supreme Court since Bill Clinton appointed Stephen Breyer in 1994.

Souter has maintained a position as an ally of reproductive choice during his time on the Court, despite the fact that he was appointed by President George H.W. Bush in 1990. He voted in to uphold laws that maintained buffer zones for protesters around abortion clinics and dissented in Planned Parenthood v. Casey in 1992, a case that opened up states' ability to place restrictions on abortion. Most recently he dissented on the Court's decision to uphold the partial birth abortion ban. But Souter, despite defending abortion rights, recently said he thought it might be reasonable for a principal to decide to strip-search a 13-year-old girl in an Arizona school district in a recent case.

"At the certain point only women get women's stuff," said Ann Bartow, professor of law at the University of South Carolina and administrator of the Feminist Law Professors blog. Her sentiments are echoed by Joan Walsh in Salon, writing that, "no president has had a better choice of female picks than Obama does."

Janet Crepps, deputy director of the U.S. legal program for the Center for Reproductive Rights, said that while her organization would likely not take a stance on whoever President Obama ends up nominating, "We need someone who is not just a vote but a voice."

Go ahead and read the whole thing.

Supreme Court Watch

Via Alyssa Rosenberg, Elena Kagen has been confirmed as the first female solicitor general. There has been some speculation that this could clear the way for her to become a nominee to the Supreme Court, should an opening arise.

Obama on the Supreme Court

The LA Times had a speculative piece this weekend on who President-elect Barack Obama would choose to nominate for the Supreme Court if a vacancy opened up (the article does point out that John Paul Stevens and Ruth Bader Ginsburg haven’t indicated they’re retiring in the next four years).

The first part of the article notes that many liberals are clamoring for Obama to choose a liberal lion in the mold of former Justices like Earl Warren, Thurgood Marshall, or William Brennan from the Supreme Court’s civil rights heyday. The article then mention those who have already been pushed by various groups as obvious candidates (there is a big push for a woman): Judges Diane Wood, from the U.S. appeals court in Chicago, Sonia Sotomayor, from the U.S. appeals court in New York, and Elena Kagan, who is dean of Harvard Law School.

But the article is quick to note that while liberals might be hungering for a social justice advocate on the Supreme Court, evidence suggests that Obama may go the route of Bill Clinton and choose a more moderate justice if a position were to open up:

In an interview with the Detroit Free Press editorial board in October, he described Warren, Brennan and Marshall as “heroes of mine. . . . But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today.”

Obama, because he has a heavy background in law already, may do little consulting for a Supreme Court justice appointment, so it’s hard to tell where his sympathies might lie until the situation presents itself. I fear that this is yet another avenue by which liberals may end up finding themselves disappointed.

While Bush took his re-election as a signal to push a conservative agenda on the Supreme Court, there’s evidence that Obama will not take the opportunity to push a liberal agenda on the Supreme Court. The problem, of course, is that the Supreme Court has already tipped so far in the balance of conservatives that appointing more moderates to the Court won’t be doing anyone’s civil liberties much of a favor.

Cross posted at Pushback.

Debating Kennedy's Position

I wrote a follow up to my previous piece on the Supreme Court for my column this week over at RH Reality Check. Some legal scholars are debating the position of Justice Anthony Kennedy -- someone most find far more to the right than to the center despite his "swing vote" status.

[Ann] Bartow's theory, then, is that the Supreme Court is simply waiting for Bush to leave office to overturn Roe and throw a wrench into the plans of a new administration, one that looks likely to be Democratic. "They have the votes to take a case now, [what] they're waiting for is a Democratic president and Congress," Bartow told me over the phone. "It would really stall any work they want to do." The Court did just decline to hear three abortion-related cases this session, but has time to accept a direct challenge to Roe later in its term – which either the South Dakota abortion ban or the Colorado personhood amendment, both on the ballot this November, could supply later this year.

Bartow's argument sparked a heated debate in the pro-choice blogosphere. Scott Lemieux, an assistant professor of political science at Hunter College in New York and contributor to the blog Lawyers, Guns and Money, disagrees with Bartow that the Court is "that crudely political," even though he acknowledges that "to some degree, the Supreme Court follows the election returns and it's not a completely apolitical body." Lemieux says that the Court elected to hear Planned Parenthood v. Casey in 1992 just before another high-stakes presidential election. The ruling on Casey upheld the right to an abortion, but established that regulations and restrictions could be placed on that right, as long as it didn't place an "undue burden" on the woman. Kathryn Kolbert, the ACLU attorney who argued the case, specifically tailored her argument to force the justices to address the central holdings of Roe before the 1992 presidential election.

Read the whole piece here.

Sandra Day O’Connor’s Anniversary

Via Feminist Law Professors, today is the 27th anniversary of Sandra Day O’Connor’s confirmation to the United States Supreme Court. O’Connor was the first woman ever to sit on the bench. Though appointed by Ronald Reagan, a conservative president, she often served as a swing vote on a number of hallmark cases, including Planned Parenthood v. Casey, in which she outlined that regulatory measures on abortion would be constitutional so long as they did not place an “undue burden” on a woman’s right to have an abortion, and Lawrence v. Texas, a ruling that determined laws against homosexual sodomy were unconstitutional. O’Connor continues to speak at colleges and universities throughout the country.

Cross posted at Pushback.