The appointment of two of George W. Bush's nominees to the Supreme Court has focused much media attention on the ideological direction of the Supreme Court. John Roberts' replacement of Chief Justice William Rehnquist last September replaced one conservative justice with another. The resignation of centrist Sandra Day O'Connor last summer and the confirmation of her replacement Samuel Alito early this month have led many to speculate that the court's conservative wing has received another member. Despite expectations that these two appointments will result in a right-ward tilt to the court, a justice's votes on key issues are often unpredictable. In an effort to gauge this court's potential ideological direction, this week The Daily talks to Political Science Professor Marilyn Glater, an expert on American constitutional law.
Paul LeMaistre: What are the most important issues Roberts' Supreme Court will face in the coming years?
Marilyn Glater: There will probably be some kinds of cases that are related to abortion, but those things may distort and overshadow more immediate cases. There may be some coming in the aftermath of the decision about taking property for public use. That's one that's got all sorts of implications. I think there of course will be cases that relate to post- 9/11 issues: terrorism, free speech. And there will continue to be, as there are always are, issues that relate to changes in technology, especially the internet in regards to free speech and copyright laws.
PL: A lot of talk has been made about Justices Roberts and Alito being new "conservative" voices on the court. Can constitutional scholars really predict how new justices will vote?
MG: First, how do you define "conservative," and how do you define "liberal"? The thing that I think is interesting is the degree to which you can't predict what people will do. There are classic stories of somebody like Justice [William Orville] Douglas, who by the end of his time on the court was the darling of liberals about all sorts of rights-related things, but he was appointed in the 30s as an expert on securities exchange. Who would have predicted that he would have become the spokesperson for the liberal position on a lot of rights-related issues? A lot of the reasons [why] you can't predict [votes] are [that] you can't predict the form in which the cases come up.
The justices don't get to say "We're going to talk about abortion." They have to deal with cases that have come through the court system, and the specific context in which they come up really matters. One of the things that I tell students in my courses is that when they do a research paper on something legal, [the students should later look at how the justices] have read the decisions; they may change their minds about what they thought they thought. Their first thought may have been in favor of one outcome, but they may not like the principles under which that outcome was made. Ideally, what justices are supposed to do is take these principles and apply them to specifics. They're not supposed to start with a specific outcome and then work backwards.
PL: With the departure of Justice O'Connor and her replacement of Justice Alito, the court has lost both a centrist voice and a female voice. Is racial and gender representation equity important for the court?
MG: I think what is more important is what people's views are than who they are themselves. It's likely the case that there [are] certain things that a female will have [more] experiences [with] than a male in this country at this time. But it's not totally impossible. I can remember when I was in law school, when law schools were almost predominantly male. I could tell within five minutes into a dinner table conversation whether some of my male classmates had sisters. If they had sisters there are some things they understood. I think what is more important than what Justices do is their openness towards growing and expanding on their own life experiences.
PL: You talked earlier about the unpredictability inherent in determining how a Justice will vote on an issue.
MG: Part of it is you don't know what they will have to decide and in what context. The other part is you can't predict how people will behave in a new position, where they have new kinds of responsibilities. It may sound idealistic, but I think that when people are there and they think, "Wow, I'm one of nine people that has to do this", they may think a little differently from the way they thought when they were a trial lawyer or circuit judge.
It doesn't mean that their job isn't to interpret the law, but that there are other things they must be aware of. In regards to ideological leanings, what really matters is what their legal philosophy and way of going about deciding things is. For Justice Alito, if you look at some of the articles talking about his opinions in the court, it will describe him as being careful about matters, looking closely at things. In the lower courts he looked carefully at what the earlier cases had said, so there is certainly the possibility that he will continue to doing that.
But once he is in the Supreme Court, he is at the top of the heap, so the lower courts will have to pay attention to what the highest court says. Though these justices are clear and careful with what they are saying, it isn't clear what they think. Roberts and Alito don't sound or talk the way that Scalia talks, and their manners don't resemble those of Scalia or Thomas at all, who are often directly critical of others in court decisions.
PL: A lot of politicians have made campaign promises - most recently George W. Bush - that if elected, they would appoint justices of a certain ideology. How does this fit in with the idea of a Supreme Court being separate from and above political bickering?
MG: To the extent of making things partisan, I think that's really unfortunate. The court is supposed to be above politics, and that's not to say that it always is.
PL: Tufts recently hosted military recruiters at the Mayer Campus Center. The Supreme Court will soon consider "Rumsfeld v. Forum for Academic and Institutional Rights," wherein law schools banned military recruiters from their campuses because they perceived the military's "Don't Ask, Don't Tell" policy to contradict their non-discrimination policies. Is this relevant to Tufts as an educational institution that receives federal funding but maintains non-discrimination policies?
MG: The law is really sweeping, because as it is written, if any branch of a university receives federal funding, then if only a single school - say the law school at Yale, which is one of the defendants, decides to ban military recruiters, then all of Yale, including its undergraduate division, loses federal funding. I think that's awfully sweeping. In the argument in the case that I've seen - and as you know the law schools won the case in the lower federal court - the law schools are saying that it should not be put in a position to discriminate against a category of people that it thinks should be protected. The military argues that they have no other sources for lawyers because [it] doesn't have a law school, and [it] is forced to recruit from private law schools to get lawyers.
[The military] is also arguing that law schools should not be exempt from helping with defense efforts, and it is saying that this is not an infringement on free speech because the law schools are free to say anything they want - they can picket the recruiters if they want - so free speech is not being infringed upon.
The law schools are arguing that they have a non-discrimination policy - similar to the one that Tufts has - and at the same time the military is telling the law schools to discriminate against their students. So this will be an interesting case for universities to observe in the coming months.
