GUEST POST: Chief Justice Roberts on Employment Discrimination--Not Often the Worker's Friend

Guest Contributor: Lindsey N. Overton

[Lindsey Overton is a student at Albany Law School, currently completing her 1st year. She is also my research assistant--a superb one in fact. She also happens to be the daughter of my Union College fraternity brother, Jack Overton, one of the most decent guys I know.
This post is entirely the product of Ms. Overton's research.]


At the time of this writing, the Supreme Court under Chief Justice John Roberts had issued 11 divided decisions in worker discrimination cases. Of these 11 decisions, five sided with the worker.

Supreme Court: Short List to Replace Stevens (Part 3: Leah Sears)

Haiti
[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
*************************************************************************

In the first 2 parts of this series on New York Court Watcher, we looked at Elena Kagan and Diane Wood. (See Supreme Court: Short List to Replace Stevens (Part 1: Elena Kagan), April 15, 2010; Supreme Court: Short List to Replace Stevens (Part 2: Diane Wood), April 24, 2010.) Let's now take a look at another possible nominee who was under consideration last year and is, by all accounts, being considered by President Obama this year as well.

Leah Sears

She is a former Chief Justice of Georgia, a position she held until her retirement from the state's supreme court in June of 2009. Sears is the first African-American woman to hold that position. She is also the first woman and youngest person ever to sit on that court. (She was originally appointed in 1992 at the age of 36 by Governor Zell Miller; her colleagues chose her as their Chief in 2005.) She now practices law at a private law firm in Atlanta.

Sears is very well respected by those who study state supreme courts and, in fact, has long been considered one of the stars of the American judiciary. For example, she was invited to be the 2007 Brennan Lecturer at NYU Law. She's a graduate of Cornell, Emory Law and Virginia graduate law.

[Sears is one of several exceptional woman chief justices-- present and immediately past--heading state high courts around the country. In a post on New York Court Watcher last year, I identified 9 of those state chiefs who I truly believe would make a much better U.S. Supreme Court than we currently have. See Chief Justice Abrahamson Gets Another Term!! -- and other Great Women Chiefs, April 10, 2009.
Disclosure: Sears is also on the board of State Constitutional Commentary, an annual issue of the Albany Law Review. I am the editor of that issue, and I invited her onto the board because I think very highly of her.]

Political considerations:
Sears is a Black woman. In the crass casual lingo of diversity/multiculturalism/affirmative action supporters, she is a "two-fer." For such supporters, that's a positive. For others, that's totally irrelevant to merit. For yet others, at the opposite end of the political divide, that's a negative. For them, it's a near sure sign that merit is being subordinated to some highly suspect considerations.

Worse than that, as a purely partisan electoral matter, if President Obama picked Sears, it would be more proof to many voters that he and his party favor minorities and women to the disadvantage of everyone else. This is no small consideration for Obama and the Democrats who are increasingly unpopular with white men.

On the other hand, Sears is another kind of two-fer that would be appealing to some of Obama's staunchest opposition. She is a Southerner and she graduated from a Southern law school--Emory, in Atlanta--rather than an Ivy League institution. (Translation: rather than a Northeastern, very Jewish, very liberal school--nearly as anathema as the New York Times.)

But whatever good will this might engender for Sears is more than counterbalanced by her reputation among Georgia Republicans as an "activist." (Translation: she's a liberal, or at least not as conservative as they'd prefer.)

In fact, Governor Sonny Perdue and the state Republican party vigorously opposed Sears's reelection to the court in 2004. They failed. But their efforts may well be a preview of Republican senators' opposition to her as, you guessed it, one of those radical, liberal, activist judges who make law, not apply it.

Undoubtedly, the Democrats would deny that Sears is a liberal (an implausible denial), the Republicans would be aghast that she is (a phony, melodramatic outrage), and the debate would degenerate into grade school-level sophistication about the role of judges. They make no law. They make no policy. They simply apply what the legislature has passed or what's written in the Constitution. They're just automatons, robotically applying law to facts to get a predetermined answer. A judge's experience, perspective, and wisdom play no part, and shouldn't.
If you doubt the scenario, recall the nonsense asked of Sonia Sotomayor at the Senate confirmation hearings, and her equally nonsensical responses.

To be sure, Sears has authored opinions that no doubt endear her to Obama and would do likewise to liberal Democrats generally. And yes, those same opinions would frighten the bejesus out of conservative Republican senators (at least ostensibly for the crowd back home). For example, in Wilson v. State (2007), Sears wrote the opinion for the Georgia Supreme Court to invalidate, as excessive, a 10 year prison sentence imposed on a 17 year old African-American male for "child molestation." He had engaged in consensual oral sex at a party with a female schoolmate who was 2 years his junior.

In another case also entitled Wilson v. State (1999), Sears argued in dissent that execution by the electric chair is cruel and unusual punishment. Two years later, in Dawson v. State (2001), her colleagues adopted her view and outlawed electrocution under the Georgia state constitution.

In State v. Davis (2008), Sears dissented when her colleagues denied the habeas corpus petition of a convicted cop-killer who was seeking a hearing to present evidence that he was actually innocent. This is the famous/infamous Troy Davis case in which former President Jimmy Carter, former FBI Director William Sessions, Archbishop Desmond Tutu, Pope Benedict, Amnesty International, the European Parliament, etc., etc., have pleaded with the courts for a new hearing. After several denials in state and federal courts, including the U.S. Supreme Court, the latter court finally yielded in August of 2009 and ordered a federal trial court to consider the evidence of innocence.

In Powell v State (1998), Sears was part of a majority that held that Georgia's law making sodomy a crime--regardless if consensual, adult, and private--violated the state's constitutional right to privacy. Sears wrote a separate concurring opinion elaborating on the judicial duty to protect individual liberty against legislation based solely on the majoritarian notions of morality, rather than on some actually compelling government necessity.
[N.B. The Georgia law in question was the same one that the U.S. Supreme Court upheld, as a matter of federal constitutional law, in that dreadfully embarrassing, homophobic 1986 decision in Bowers v. Hardwick. The 5-4 majority of the nation's high court allowed states to criminalize consensual adult intimacy between gay partners on the preposterous ground that the Constitution did not grant a fundamental right to "homosexual sodomy." Eventually, five years after the Georgia court's Powell decision, the Supreme Court followed suit, emerged from the Middle Ages, and in Lawrence v. Texas (2003) overruled its then-17 year old Bowers disgrace. It did so along the same lines argued by Sears and her court.
That will hardly, however, placate conservative Republican senators who view the recognition of gay rights as being equally un-American and un-Godly to a woman's right to choose, the separation of church and state, and health-care reform.]

In any event, that's a sample of Sears's opinions that will certainly warm the cockles of liberal hearts but infuriate many Republican senators. If Obama nominates Sears, he's almost certainly looking at a political battle. Sears is surely qualified. If merit were the only consideration, there would be no hesitation to nominating her. But political considerations are always at least as important as merit. Usually more so.

As with Elena Kagan (See Supreme Court: Short List to Replace Stevens (Part 1: Elena Kagan), April 15, 2010.) and Diane Wood (See Supreme Court: Short List to Replace Stevens (Part 2: Diane Wood), April 24, 2010.), merit and Obama's actual preferences may well give way to purely political calculations. Both the Senate hearings in the short run, and the elections in November.

There is no shortage of strong potential nominees, however. Some are even non-Northeastern, non-Jewish, non-minority, non-"gay activist" males who would be far more palatable to Obama's opposition. We'll look at some of them in upcoming posts.

Of course, Obama may announce his nomination very shortly. If he does, we'll shift our focus to that nominee's record.

Supreme Court: Short List to Replace Stevens (Part 2: Diane Wood)

Haiti
[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
*************************************************************************

In part 1 of this series on New York Court Watcher, we took a look at Elena Kagan. She was considered by many to be the frontrunner among the possible nominees to replace the retiring Justice Stevens. But, as discussed in that first post, there are political considerations--having absolutely nothing whatsoever to do with merit, of course--that would make her politically risky for the President. In short, she's another New Yorker (that would make 4), another Jew (that would make 3), assertive on gay and lesbian right (she will be viewed as a vote for same-sex marriage or civil unions of for invalidating the DOMA [the Defense of Marriage Act]), and she is neither a white man (Obama needs to shore up support among them) nor a Protestant (with Stevens' retirement, the Court will be without one).

Now let's look at someone else who was on the short list the last time, and who almost certainly is in the top tier of the list this time around. Of course, that tier, as well as the list itself, is likely changing along with the changing political considerations and calculations. But this appeals court judge is certainly among the very serious possibilities that Obama is considering.

Diane Wood

This is a judge who, by all accounts, has the candlepower to challenge the conservatives on the Court. Lots of it.

She has been using it on the 7th Circuit, the conservative federal appeals court that sits in Chicago. She has been wrestling with Richard Posner and Frank Easterbrook, two of the acknowledged genuine brilliances of the federal judiciary. Her opinions on that court, majority and dissent, evince an uncowered intellect ready and willing to go toe to toe with the sharpest and most opinionated jurists on any court.

Wood has already worked at the Supreme Court, clerking for Justice Harry Blackmun shortly after her graduation from University of Texas law school. She practiced law at Covington & Burling, one of the nation's truly premiere law firms. She was a professor at Georgetown Law and then at Chicago (along with Obama), where she continues to teach on the side. She also served as an assistant attorney general in the Clinton administration until he appointed her to the appeals court.

In short, enormously well-qualified in terms of legal, academic, and judicial background.

Additionally--and this would seem extremely important for Obama--she has a reputation for persuasiveness. She apparently is very well respected and gets along very well with her colleagues, even her frequent ideological foes.

If Obama is to change the Court, move it in a less conservative direction, he needs to do more than simply replace one liberal vote with another. That's basically all he did with his appointment of Sonia Sotomayor. No one is accusing her of being particularly persuasive, and her reputation is not one of being particularly well-liked by those who have worked with her.

But Judge Wood's reputation is the opposite. She may be able to do what Justice Stevens and, even more so, Justice William Brennan before him were able to do. That is, to get a majority--i.e., a 5th vote, or even a 6th--for a more liberal position on some major issues, despite the conservative bent of the Court. Brennan did that quite frequently during the tenure of Nixon-appointed Chief Justice Warren Burger. Stevens has been doing that, if less frequently, during the William Rehnquist (appointed Chief by Reagan) and John Roberts (appointed Chief by Bush II) eras.

Political considerations:
Her dissents in some high profile cases, which are critical of her colleagues' conservative decisions, may serve as political fodder for Republican senators who want to take a stand against the President for nominating a "liberal activist" judge. (E.g., she dissented in Christian Legal Society v. Walker [2006] where the majority ruled in favor of a student religious organization; the state university had refused to recognize the organization because it excluded gays and lesbians and anyone else who did not disavow homosexuality.)

Likewise, some of her majority opinions may also serve as political fodder. (E.g., her opinion in National Organization for Women v. Scheidler (2001) in which she upheld a lower court order banning certain protests at abortion clinics; the protests were sometimes violent and often threatened violence. But the Supreme Court reversed Wood's decision by narrowly interpreting the law that, in Wood's view and that of the trial judge who had issued the order, seemed to make such protests illegal.)

So, if nominated, Wood is likely to face accusations that she favors the rights of gays and lesbians over Christians. That she is so radically pro-abortion that she favors the right to abortion over free speech. That her colleagues disagree with her and so does the Supreme Court.

Also, Wood has been married 3 times. The 1st 2 ended in divorce. Don't be surprised if the implications that some self-righteous senators might find on "family values" seep into the hearings. Some might well detect a common thread to be inferred from pro-gay + pro-abortion + pro-divorce. (If you think that's preposterous and far-fetched, just remember the huge bruhahah over Sotomayor's "wise Latina" comment. These hearings are rarely about merit!)

And, let's not forget, Diane Wood not a white guy. Obama needs to shore up his popularity among that part of the electorate. Nominating a 2d woman in a row to the Court will not do that. Nominating another woman will only serve to underscore the impression that Obama and the Democratic Party are more concerned and more supportive of women and minorities than they are of white men.

So it's not just Obama's conservative Republican opposition that will be concerned with non-merit considerations. The President himself, like all presidents before him, will be weighing purely political considerations as well. Even some that would seem utterly outlandish for choosing a Justice on the Supreme Court to participate in making decisions about the nation's most fundamental principles and critical issues.

Next post--unless Obama makes his decision by then--another possible nominee or two likely on the short list.

Supreme Court: Short List to Replace Stevens (Part 1: Elena Kagan)

Haiti
[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
*************************************************************************

Whoever is appointed to succeed Justice John Paul Stevens will not "replace" him in any true sense of the word. The new appointee will fill a seat on the Court following a vacancy created by Stevens' retirement. But, it will be a long time before the new appointee, regardless of who that might be, will have the wisdom and experience, both judicial and life, of Stevens.

That's a different question than the one we're dealing with in this post. We'll do a couple--maybe a few or even several--on the short list and then on whomever President Obama actually nominates. [Which also raises the timeless question of the precise difference between "few" and "several." Then, of course, there's the perhaps more temperamental cum rhetorical and semantical issue of when "several" becomes "many" or, alas, "too many." Now that's a debate we can all sink our teeth into.]

In any event, for this 1st post in an inevitable series on New York Court Watcher dealing with the short list to replace Stevens--i.e., my speculation + presumption + semi-informed supposition of whom Obama is really considering--we'll look at some women who are possibilities. Some of them were on the short list (or, what I figured was the short list) the last time to replace Justice David Souter.

Here is the first of them. She is considered the frontrunner by many. A brief description and a few political considerations follow.

Elena Kagan
She's the former (and first woman) Dean of Harvard Law. She was educated at Princeton, Oxford, and Harvard Law. She was as a law clerk to Justice Thurgood Marshall; she was a clerk at the U.S. Court of Appeals for D.C. Circuit before that. She was a professor at Chicago before working in the Clinton administration as an assistant White House Counsel. She is currently part of the Obama administration as Solicitor General--hence, she is responsible for representing the United States before the Supreme Court.
In short, one incredibly extraordinary resume. Very very hard to beat in terms of educational and career pedigree.

Political considerations:
She is a New Yorker and there are already 3 on the Court. (Scalia, Ginsburg and Sotomayor.) She is a Jew and there are already 2 on the Court (Ginsburg and Breyer). [Hey, some of us might not care. But don't forget, there are parts of the country that equate America and Christianity. As for me, I think of Brandeis, Cardozo and Frankfurter, the 1st 3 Jewish Justices, then I think of Ruth Bader Ginsburg currently on the Court, and I'd be thrilled with as many of that caliber and character as we can possibly get on the Court. But I also recall that President Hoover had objections to Cardozo because that extraordinary jurist was a New Yorker and a Jew, and the Court already had a representative of each. Fortunately for the nation, Hoover was ultimately embarrassed by Senators of his own Republican party to disregard those apparently negative factors and go ahead and nominate Cardozo.]
Related to the previous consideration: she is not Protestant. When Stevens is gone, there will be 6 Catholics, 2 Jews, no Protestants. That will be an enormous, if generally unstated, concern. Don't kid yourself. In some parts of the country, and among some parts of the electorate, all Catholics and Jews will not sit well.
She is not a White Man, and Obama is having political difficulties with white men. Picking another Northeastern liberal woman will not gain him any support among the white men who are upset that everyone else is getting special treatment but them.
Oh, and she's been very pro gay rights. You know, the radical, un-American notion that people who are gay in America should be treated equally. Again, tough to swallow in a large part of the country and with a large part of the electorate. And then there are the rumors--I have no idea and don't care if they're true--that she herself is a lesbian.

So, lots of strong pluses on the merits side. But some real minuses politically.

Next on New York Court Watcher, 2 other women who were on the last short last and almost certainly are on this one as well. And the reports in the press say they are: Diane Wood and Leah Sears.

The Supremes, The New York Court, Stevens' Retirement, Lippman's 1st Year, Etc., Etc.

Haiti
[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
*****************************************************************************

[I just finished a project on the 1st year of the Lippman Court--i.e., New York's high court during the 1st full year of Jonathan Lippman's tenure as Chief Judge. That monopolized my court-watching time for the last few weeks. So now it's back to blogging on New York Court Watcher.]

The Supreme Court is finishing its 2009-10 term--the October 2009 term in Court-speak.

Justice John Paul Stevens has announced his retirement.

President Obama is making a decision on who to nominate to replace Stevens.

The New York Court of Appeals is itself nearing the end of its 2009-10 term. (Actually, the Court of Appeals' terms officially run conterminously with the calendar year.)

Its Chief Judge, Jonathan Lippman, just completed his 1st full year participating in the Court's decisions.

The Justices and Judges of those two Courts all have their goats, and what gets them should be explored. This helps both to understand the individuals themselves and to get a better sense of the composition of their respective tribunals. (A colleague--Prof. Keith Hirokawa--suggested a different metaphor: the jurists' cages and what rattles them. We then spent too much time conjuring up others--naturally, the more idiotic, the more we laughed.)

Both those Courts, and other high courts around the country as well, have been rendering decisions that really need to be discussed.

Then there's the upcoming Triple Crown races. The Kentucky Derby on the 1st Saturday (the 1st day this year) of May, followed shortly by the Preakness and the Belmont.

Then, of course, the best part of summer--the Saratoga meet. From the end of July into the early September. 40 days this year of God's most beautiful creatures and best athletes. Pure heaven on earth. Tied with Arizona that is.

In short, there's lots to cover. There's always lots to cover.

But for now, just a quick start. A short preface to what we'll be looking at regarding Justice Stevens. Here's a look at the number of dissenting opinions each Justice wrote last term, and the number of total dissents they each wrote or joined:

Who's Dissenting & How Often?
Number of Dissents Written & Voted
(click to enlarge)
This graph, originally published in New York Court Watcher last September, shows that Justice Stevens authored the most dissenting opinions and voted in dissent more than any other member of the Court. Considering that Stevens has been the leader of the Court's liberal wing, his dissenting leadership means more than simply that he wins the award for being the most prolific. It also means that he--again the leader of the Court's liberals--has had the most to complain about.

But more than that, look at who else has dissented the most, both writing and voting. Ginsburg, Souter [Remember, he retired at the end of last year and was replaced by Sonia Sotomayor.], and Breyer. The Court's other liberals. So, the most frequent dissenters, the Justices with the most to complain about, the Justices who have been on the opposite side of the Court's winning majority the most frequently, are the Court's 4 liberals.

Well, that should make you gleeful or depressed. Either way, it tells you a lot about the current Court.

More on this and lots more in forthcoming posts.