According to a new poll, two thirds of Americans can't name a single member of the Court. Meanwhile, these people are more powerful than they've been in a long time.
It's the second half of August, which means it's the time for vacations, political scandals, and polls about how ignorant hundreds of millions of Americans are about even the most basic questions of modern governance. As to topic three, this week's leader in the clubhouse is a new poll that reveals that two-thirds of all Americans can't name a single justice of the United States Supreme Court. This after a Court term which was one of the most profound and contentious of its generation.
Chief Justice John Roberts led the way in name recognition -- but only one in five respondents could name him. At the bottom of the list was Justice Stephen Breyer, the Clinton appointee identified by only 3 percent of those surveyed. Justice Anthony Kennedy, the swing vote who decides so many of those critical 5-4 cases? Only one in ten could identify him. Do yourself a favor. Right after you read the piece about the poll, read Adam Liptak's interesting piece from Monday in The New York Times. Its essence?
An overlooked consequence of the current polarization and gridlock in Congress, a new study found, has been a huge transfer of power to the Supreme Court. It now almost always has the last word, even in decisions that theoretically invite a Congressional response.
"Congress is overriding the Supreme Court much less frequently in the last decade,' Richard L. Hasen, the author of the study, said in an interview. "I didn't expect to see such a dramatic decline. The number of overrides has fallen to almost none."
The Court is still the most reactive branch of government. But it's no secret that the justices, like everyone else in America, understand that Congress has crippled itself. This explains why so many people laughed in court in March when Justice Antonin Scalia, on his way to voting against the Affordable Care Act, suggested tongue-in-cheek that the easiest answer would be for federal lawmakers to go back to the drawing board and fix the legislation. Good one, Justice Scalia!
If you are reading this, you are likely in the one-third of the populace that can name at least one justice. But chances are you know a great many people who cannot. With attention spans being what they are, especially in the weeks leading up to Labor Day, I thought I would offer a brief primer on the men and women who wield so much power in such an anonymous way in this country. If you only have the time and brain space to read just one thing about each justice, here they are....
Chief Justice John Roberts, 20 Percent: Forget about his vote to save the Affordable Care Act. Focus instead upon his reactionary analysis of the Commerce Clause. Jeffrey Toobin's May 2009 New Yorker piece, "No More Mr. Nice Guy," remains the standard in assessing the "stealth" conservatism of the man who replaced his mentor and idol, William Rehnquist, at the helm of the Court.
Justice Clarence Thomas, 16 Percent: Forget about his lingering silence from the bench. Forget about how he got his job. Just read his dissent in Safford United School District v. Redding, the 2009 case in which all of his eight colleagues on the Court agreed that middle school administrators had violated the constitutional rights of a 13-year-old student when they strip-searched her looking for Ibuprofen. Only Justice Thomas declared that such a search did not violate the 14th Amendment.
Justice Antonin Scalia, 16 Percent: Sometimes right. Sometimes wrong. But never in doubt. Justice Scalia frequently wins the "funniest justice" contests that spring up from time to time. But there was nothing funny about his concurrence in Kansas v. Marsh, a 2006 case about aggravating and mitigating factors in a state's death penalty statute. Justice Scalia infamously declared that there was no proof that America had recently executed an innocent man. We now know this to be false.
Justice Ruth Bader Ginsburg, 13 Percent: The Clinton appointee is nearing her 20th year on the Court, and as it has moved endlessly toward the right, she's become the progressive that conservatives love to hate. Read her passionate dissent in the Affordable Care Act case from June, National Federal of Independent Business v. Sebelius. Her view of the Commerce Clause is diametrically opposed to the view held by the Chief Justice. Both can't be correct. Check back in 20 years to see who won.
Justice Sonia Sotomayor, 13 Percent: She's a diehard fan of the New York Yankees, but America shouldn't hold that against her. Instead, read her relentless dissent in Cullen v. Pinholster, a 2011 case out of California in which the Court's majority limited the ability of a capital defendant to have effective assistance of counsel at the sentencing phase of his trial. Why is this dissent more searing than most? Alone among her colleagues, Justice Sotomayor worked as a trial judge. She knew bad judging when she saw it.
Justice Anthony Kennedy, 10 Percent: The Reagan appointee is at the center of the Court, a fact which explains both how conservative it has become and why so many people on both sides can't stand him. Read Justice Kennedy's majority opinion in Lawrence v. Texas, the 2003 decision which struck down anti-sodomy laws. A snippet: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring."
Justice Samuel Alito, 5 Percent: He's probably most famous for his dramatic State of the Union moment with President Barack Obama back in January 2010. I like to remember him for his speech at the Manhattan Institute in which he railed upon "editorial writers" and proclaimed that "ordinary people" understand the Constitution better than the pundits. But if you are going to read one thing about Justice Alito, read his stirring dissent in the 2011 military funeral case, Snyder v. Phelps.
Justice Elena Kagan, 4 Percent: She wasn't yet on the Court, so she can't be blamed for its January 2010 Citizens United ruling. But one year later, in a campaign-finance case styled Arizona Free Enterprise v. Bennett, she penned an epic dissent. A few months earlier, she also was in dissent in another case out of Arizona, a case involving the Establishment Clause of the First Amendment. She's already mastered what most of her colleagues have not: the art of writing about technical matters in an accessible way.
Justice Stephen Breyer, 3 Percent: If you are going to read one thing about Justice Breyer, stay away from his published work about administrative law. Instead, read the transcript of his 2005 on-air conversation with CNN's Larry King. Or, better yet, read the transcript of his 2010 appearance. Of the first amendment, Justice Breyer told King: "We protect expression we hate. When you have a country of 300 million different people who think different things, it is helpful. It is helpful to everyone."
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