Is Justice Ginsburg Risking the Future of the Supreme Court?

Supreme Court Justice Ruth Bader Ginsburg. (photo: Bill Clark/Getty Images)
Supreme Court Justice Ruth Bader Ginsburg. (photo: Bill Clark/Getty Images)

From Reader Supported News

By Chris Geidner, The Daily Beast

24 May 12


 

little more than a year ago, Harvard Law School Prof. Randall Kennedy sounded the alarm.

 

Justices Ruth Bader Ginsburg and Stephen Breyer should soon retire,” Kennedy wrote in the pages ofThe New Republic. “That would be the responsible thing for them to do.”

 

If they didn’t, Kennedy warned, and “if Obama loses, they will have contributed to a disaster.”

As the presidential race heats up, and the Supreme Court justices settle into their chambers to write their last and most consequential rulings of the 2011-12 term—from health care to immigration—Kennedy’s question once again seems relevant, even revelatory: most court watchers agree it’s now too late for Ginsburg—or Breyer, or any other justice—to give President Obama a third nomination to the high court before the election.

 

Kennedy’s hypothetical has taken on renewed significance, however, since Mitt Romney is currently polling close to or above President Obama in several key battleground states. If he were to unseat Obama this fall, and Ginsburg—a two-time cancer survivor who turns 80 next March—doesn’t feel she can continue through Romney’s first (or possibly second) term, should liberals fault her for potentially tilting the balance of the court for decades to come? (Breyer, 72, has had no reported major health scares, although he does seem to be a burglar magnet.)

 

This is the “disaster” Kennedy foresaw: a multigeneration conservative majority on the Supreme Court. Since the 1990s, the court has been in ideological equipoise: a conservative bloc and a liberal bloc, each regularly finding itself in the position of needing to win the vote of Justice Anthony Kennedy (or, until her retirement in 2006, Justice Sandra Day O’Connor).

 

Of course, the justices themselves resist characterizing their votes as “liberal” or “conservative,” instead arguing that they are guided by the Constitution and other supposedly “neutral” principles. But that pretense took a hit in 2000 by the vote in Bush v. Gorethe core of which was decided 5-4, with the conservative justices (including Kennedy) voting in favor of Bush’s argument and the liberal justices voting in favor of Gore’s.

Ginsburg was on the losing end of that one, but a switched vote by Kennedy or O’Connor could have tipped the scale in her direction—as has happened in several other cases over the dozen years since. If Ginsburg were to be replaced by a President Romney, liberals reasonably fear a string of votes against them in cases ranging from abortion rights to criminal defendants’ rights, from LGBT equality to affirmative action.

 

This isn’t a new concern: In the mid-1970s, Justice William O. Douglas, who’d been appointed by FDR in 1939, faced his replacement being named by a Republican president.

 

As Bob Woodward and Scott Armstrong recounted in The Brethren, Douglas told a friend he would not step down despite suffering from debilitating illness. “Even if I’m half-dead, maybe it will make a difference about someone getting an education,” Douglas said. “There will be no one on the Court who cares for blacks, Chicanos, defendants, and the environment.”

 

In the long run, Douglas’s fears did not come to pass: he stepped down in 1975, giving a nomination to President Gerald Ford, who picked John Paul Stevens—a moderate Republican at the time who turned into a steadfast member of the court’s liberal bloc.

 

Dawn Johnsen, a professor at Indiana University’s Maurer School of Law, told The Daily Beast that Douglas was not alone in looking at who is in the White House when considering stepping down. “Supreme Court justices (including Justice Ginsburg) undoubtedly are keenly aware of the tremendous stakes involved in when they retire and who appoints their successor.”

 

Although several political-science scholars describe the court in directly political terms, few legal scholars on either the left or right share Randall Kennedy’s desire for such a politically timed retirement.

 

Eugene Volokh, a law professor at UCLA who characterizes himself as a libertarian-leaning conservative, defends Ginsburg choosing the time for her own retirement.

 

“Justice Ginsburg has to make a decision that makes sense for herself based on her judgment about what she wants to do and how long she wants to serve her country and how much it matters to her that her replacement be named by a President Obama rather than a President Romney, and how she feels. She has a better sense about her health than you or I do,” he said.

 

Perhaps reflecting the generally high level of respect accorded the justices, Kennedy did not suggest that Justice Thurgood Marshall, for whom he once clerked, had damaged the court by failing to retire under a Democratic president. The first President Bush filled Marshall’s seat with Clarence Thomas, by many measures the most conservative justice on the court.

University of Chicago law professor Geoffrey Stone, the former chair of the board of the American Constitution Society, a left-leaning legal organization formed to counter the influence of the conservative Federalist Society, agreed with Volokh.

 

The justices believe “they have the ‘right’ approach to the law, and as patriotic Americans they naturally want to see their successors follow in their footsteps. But is that something that should be admired?”

 

“Justices have no responsibility to time their retirements in order to maximize the probability that the president who appoints their successors will have views similar to their own,” Stone said.

 

The more interesting question, Stone said, “is whether it is morally problematic for justices intentionally to time their retirements in order to maximize the probability that their successors will be like them.

 

“They care deeply about the law, they believe they have the ‘right’ approach to the law, and as patriotic Americans they naturally want to see their successors follow in their footsteps. But is that something that should be admired?”

 

Prof. Jeffrey Segal, the chair of the political-science department at Stony Brook University and a leading court scholar, said that justices “absolutely” should consider the political implications of their retirement.

 

“If you believe in women’s rights the way that Justice Ginsburg obviously does, or abortion rights or any of the other things that she so strongly believes in, why would you want—on this closely divided court—why would you want your retirement to set in motion an undoing of the things that you’ve spent your lifetime accomplishing?”

 

But Segal acknowledged that the justices don’t necessarily share that perspective.

 

“I think it is something that should be considered, but there are people who have studied this systematically, and there seems to be very, very little evidence that the justices time their retirements to the occupants in the White House,” Segal said. “If you look back historically, it’s maybe some tiny effect.”

 

One reason for this is that the process of filling a Supreme Court seat is contingent on so many unpredictable variables that it’s difficult to predict what’s going to happen at any given moment.

 

“Gaming the system is a very tough enterprise,” said Robert Raben, former assistant attorney general for legislative affairs in the Clinton administration. Even assuming a justice wanted to, Raben said, the timing and actions of the process—from retirement announcement to nomination to hearings to confirmation—are hard to gauge from One First Street.

 

No matter what calculations go into a justice’s decision about retirement, the bottom line is that Ginsburg remains on the bench, and barring a calamity she will be there when the president likely to replace her takes the oath of office next January.

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The characteristics that make each language unique may actually be adaptations to the acoustics of different environments.

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The Case for Reparations

 

The Case for Reparations

 

Two hundred fifty years of slavery. Ninety years of Jim Crow. Sixty years of separate but equal. Thirty-five years of racist housing policy. Until we reckon with our compounding moral debts, America will never be whole.

 

By Ta-Nehisi Coates

May 21, 2014

 


Chapters

  1. I. “So That’s Just One Of My Losses”
  2. II.  “A Difference of Kind, Not Degree”
  3. III. “We Inherit Our Ample Patrimony”
  4. IV. “The Ills That Slavery Frees Us From”
  5. V. The Quiet Plunder
  6. VI. Making The Second Ghetto
  7. VII. “A Lot Of People Fell By The Way”
  8. VIII. “Negro Poverty is not White Poverty”
  9. IX. Toward A New Country
  10. X. “There Will Be No ‘Reparations’ From Germany”
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Mon

02

Jun

2014

A Look At 19th Century Children In The USA

PHILADELPHIA — DINNER with your children in 19th-century America often required some self-control. Berry stains in your daughter’s hair? Good for her. Raccoon bites running up your boy’s arms? Bet he had an interesting day.

 

As this year’s summer vacation begins, many parents contemplate how to rein in their kids. But there was a time when Americans pushed in the opposite direction, preserved in Mark Twain’s cat-swinging scamps. Parents back then encouraged kids to get some wildness out of their system, to express the republic’s revolutionary values.

The New York Times

Sunday Review

By JON GRINSPAN MAY 31, 2014

 

A late 19th century family taking a stroll down a set of railroad tracks
A late 19th century family taking a stroll down a set of railroad tracks

American children of the 19th century had a reputation. Returning British visitors reported on American kids who showed no respect, who swore and fought, who appeared — at age 10 — “calling for liquor at the bar, or puffing a cigar in the streets,” as one wrote. There were really no children in 19th-century America, travelers often claimed, only “small stuck-up caricatures of men and women.”

 

This was not a “carefree” nation, too rough-hewed to teach proper manners; adults deliberately chose to express new values by raising “go-ahead” boys and girls. The result mixed democracy and mob rule, assertiveness and cruelty, sudden freedom and strict boundaries. Visitors noted how American fathers would brag that their disobedient children were actually “young republicans,” liberated from old hierarchies. Children were still expected to be deferential to elders, but many were trained to embody their nation’s revolutionary virtues. “The theory of the equality” was present at the ballot box, according to one sympathetic Englishman, but “rampant in the nursery.”

 

Boys, in particular, spent their childhoods in a rowdy outdoor subculture. After age 5 or so they needed little attention from their mothers, but were not big enough to help their fathers work. So until age 10 or 12 they spent much of their time playing or fighting.

 

The writer William Dean Howells recalled his ordinary, violent Ohio childhood, immersed in his loose gang of pals, rarely catching a “glimpse of life much higher than the middle of a man.” Howells’s peers were “always stoning something,” whether friends, rivals or stray dogs. They left a trail of maimed animals behind them, often hurt in sloppy attempts to domesticate wild pets.

 

And though we envision innocents playing with a hoop and a stick, many preferred “mumbletypeg” — a game where two players competed to see who could throw a knife closer to his own foot. Stabbing yourself meant a win by default.

 

Left to their own devices, boys learned an assertive style that shaped their futures. The story of every 19th-century empire builder — Carnegie, Rockefeller, Vanderbilt — seems to begin with a striving 10-year-old. “Boy culture” offered training for the challenges of American manhood and a reprieve before a life of labor.

 

But these unsupervised boys also formed gangs that harassed the mentally ill, the handicapped and racial and ethnic minorities. Boys played an outsize role in the anti-Irish pogroms in 1840s Philadelphia, the brutal New York City draft riots targeting African-Americans during the Civil War and attacks on Chinese laborers in Gilded Age California. These children did not invent the bigotry rampant in white America, but their unrestrained upbringing let them enact what their parents mostly muttered.

 

Their sisters followed a different path. Girls were usually assigned more of their mothers’ tasks. An 8-year-old girl would be expected to help with the wash or other physically demanding tasks, while her brother might simply be too small, too slow or too annoying to drive the plow with his father. But despite their drudgery, 19th-century American girls still found time for tree climbing, bonfire building and waterfall-jumping antics. There were few pretty pink princesses in 19th-century America: Girls were too rowdy and too republican for that.

 

So how did we get from “democratic sucklings” to helicopter parents? Though many point to a rise of parental worrying after the 1970s, this was an incremental change in a movement that began a hundred years earlier.

 

In the last quarter of the 19th century, middle-class parents launched a self-conscious project to protect children. Urban professionals began to focus on children’s vulnerabilities. Well-to-do worriers no longer needed to raise tough dairymaids or cunning newsboys; the changing economy demanded careful managers of businesses or households, and restrained company men, capable of navigating big institutions.

 

Demographics played a role as well: By 1900 American women had half as many children as they did in 1800, and those children were twice as likely to live through infancy as they were in 1850. Ironically, as their children faced fewer dangers, parents worried more about their protection.

 

Instead of seeing boys and girls as capable, clever, knockabout scamps, many reconceived children as vulnerable, weak and naïve. Reformers introduced child labor laws, divided kids by age in school and monitored their play. Jane Addams particularly worked to fit children into the new industrial order, condemning “this stupid experiment of organizing work and failing to organize play.”

 

There was good reason to tame the boys and girls of the 19th century, if only for stray cats’ sake. But somewhere between Jane Addams and Nancy Grace, Americans lost track of their larger goal. Earlier parents raised their kids to express values their society trumpeted.

 

“Precocious” 19th-century troublemakers asserted their parents’ democratic beliefs and fit into an economy that had little use for 8-year-olds but idealized striving, self-made men. Reformers designed their Boy Scouts to meet the demands of the 20th century, teaching organization and rebalancing the relationship between play and work. Both movements agreed, in their didactic ways, that playtime shaped future citizens.

 

Does the overprotected child articulate values we are proud of in 2014? Nothing is easier than judging other peoples’ parenting, but there is a side of contemporary American culture — fearful, litigious, controlling — that we do not brag about but that we reveal in our child rearing, and that runs contrary to our self-image as an open, optimistic nation. Maybe this is why sheltering parents come in for so much easy criticism: A visit to the playground exposes traits we would rather not recognize.

 

There is, however, a saving grace that parents will notice this summer. Kids are harder to guide and shape, as William Dean Howells put it, “than grown people are apt to think.” It is as true today as it was two centuries ago: “Everywhere and always the world of boys is outside of the laws that govern grown-up communities.” Somehow, they’ll manage to go their own way.

 

________________________________

 

A National Endowment for the Humanities fellow at the Massachusetts Historical Society who is writing a book on the role of young people in 19th-century American democracy.

0 Comments

Mon

21

Apr

2014

Investigating Family's Wealth, China's Leader Signals a Change

From The New York Times 

By CHRISTOPHER DREW and JAD MOUAWAD

APRIL 19, 2014

 

HONG KONG — His son landed contracts to sell equipment to state oil fields and thousands of filling stations across China. His son’s mother-in-law held stakes in pipelines and natural gas pumps from Sichuan Province in the west to the southern isle of Hainan. And his sister-in-law, working from one of Beijing’s most prestigious office buildings, invested in mines, property and energy projects.

 

In thousands of pages of corporate documents describing these ventures, the name that never appears is his own: Zhou Yongkang, the formidable Chinese Communist Party leader who served as China’s top security official and the de facto boss of its oil industry.





A visitor at the Zhou family's ancestral graves in Xiqliantou, eastern China.  Intrigue surrounds the family after a spate of arrests.  Sim Chi Yim for the New York Times
A visitor at the Zhou family's ancestral graves in Xiqliantou, eastern China. Intrigue surrounds the family after a spate of arrests. Sim Chi Yim for the New York Times

But President Xi Jinping has targeted Mr. Zhou in an extraordinary corruption inquiry, a first for a Chinese party leader of Mr. Zhou’s rank, and put his family’s extensive business interests in the cross hairs.

 

Even by the cutthroat standards of Chinese politics, it is a bold maneuver. The finances of the families of senior leaders are among the deepest and most politically delicate secrets in China. The party has for years followed a tacit rule that relatives of the elite could prosper from the country’s economic opening, which rewarded loyalty and helped avert rifts in the leadership.

Zhou Family Ties

1 Comments

Fri

13

Nov

2015

Are Languages Products of their Environment?


shutterstock_222422665_151112


DISCOVER MAGAZINE published this very interesting article: 


  Languages Are Products of Their Environments


The characteristics that make each language unique may actually be adaptations to the acoustics of different environments.

2 Comments

Tue

03

Jun

2014

The Case for Reparations

 

The Case for Reparations

 

Two hundred fifty years of slavery. Ninety years of Jim Crow. Sixty years of separate but equal. Thirty-five years of racist housing policy. Until we reckon with our compounding moral debts, America will never be whole.

 

By Ta-Nehisi Coates

May 21, 2014

 


Chapters

  1. I. “So That’s Just One Of My Losses”
  2. II.  “A Difference of Kind, Not Degree”
  3. III. “We Inherit Our Ample Patrimony”
  4. IV. “The Ills That Slavery Frees Us From”
  5. V. The Quiet Plunder
  6. VI. Making The Second Ghetto
  7. VII. “A Lot Of People Fell By The Way”
  8. VIII. “Negro Poverty is not White Poverty”
  9. IX. Toward A New Country
  10. X. “There Will Be No ‘Reparations’ From Germany”
0 Comments

Mon

02

Jun

2014

A Look At 19th Century Children In The USA

PHILADELPHIA — DINNER with your children in 19th-century America often required some self-control. Berry stains in your daughter’s hair? Good for her. Raccoon bites running up your boy’s arms? Bet he had an interesting day.

 

As this year’s summer vacation begins, many parents contemplate how to rein in their kids. But there was a time when Americans pushed in the opposite direction, preserved in Mark Twain’s cat-swinging scamps. Parents back then encouraged kids to get some wildness out of their system, to express the republic’s revolutionary values.

The New York Times

Sunday Review

By JON GRINSPAN MAY 31, 2014

 

A late 19th century family taking a stroll down a set of railroad tracks
A late 19th century family taking a stroll down a set of railroad tracks

Read More 0 Comments

Mon

21

Apr

2014

Investigating Family's Wealth, China's Leader Signals a Change

From The New York Times 

By CHRISTOPHER DREW and JAD MOUAWAD

APRIL 19, 2014

 

HONG KONG — His son landed contracts to sell equipment to state oil fields and thousands of filling stations across China. His son’s mother-in-law held stakes in pipelines and natural gas pumps from Sichuan Province in the west to the southern isle of Hainan. And his sister-in-law, working from one of Beijing’s most prestigious office buildings, invested in mines, property and energy projects.

 

In thousands of pages of corporate documents describing these ventures, the name that never appears is his own: Zhou Yongkang, the formidable Chinese Communist Party leader who served as China’s top security official and the de facto boss of its oil industry.





A visitor at the Zhou family's ancestral graves in Xiqliantou, eastern China.  Intrigue surrounds the family after a spate of arrests.  Sim Chi Yim for the New York Times
A visitor at the Zhou family's ancestral graves in Xiqliantou, eastern China. Intrigue surrounds the family after a spate of arrests. Sim Chi Yim for the New York Times

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