By Taylor Kate Brown
Oyez, Oyez. The US Supreme Court is heading towards the final decisions of its 2014 term – including major opinions on gay marriage and President Obama’s healthcare law. The court can have broad and deep impact, but who are the nine justices who have such an outsized influence on American life? Meet the Supremes.
On the court since: 7 August 2010
How she got to the court: Kagan grew up in New York City. At the age of 12, she convinced her rabbi to hold the synagogue’s first formal bat mitzvah, the rite of passage for young women. After law school at Harvard, she clerked for Justice Thurgood Marshall. After a successful stint as the first female dean of Harvard Law School, she was briefly US solicitor general – the federal government’s top representative at the US Supreme Court, before being nominated by President Barack Obama for the high court.
Who is she as a justice? Kagan is the first justice in decades not to previously serve as a judge. She is part of the court’s left-leaning wing, but has been the author of many of recent unanimous or near unanimous decisions. Her writing is often easy for a layperson to understand without sacrificing legal analysis, and she is an aggressive questioner during oral arguments. Kagan first took her seat at the bench at the age of 50 and could potentially be a force on the court for decades. But as the “junior justice”, Kagan is required to take notes during justice-only meetings.
Dahlia Lithwick, Slate’s legal correspondent, says Kagan is “much more inscrutable” on issues than other recent additions to the court. “She’s very close to the vest,” she says.
Justice’s Opinion: Kagan wrote an impassioned dissent in the Town of Greece v Galloway, in which the court heard a challenge to Greece’s practice of opening town meetings with a Christian prayer.
“When a person goes to court, a polling place, or an immigration proceeding, I could go on: to a zoning agency, a parole board hearing, or the DMV – government officials do not engage in sectarian worship, nor do they ask her to do likewise. They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans – none of them different from any other for that civic purpose. Why not, then, at a town meeting?”
On the court since: 8 August 2009
How she got to the court: Sotomayor was born to Puerto Rican immigrants in the Bronx. As a student at Princeton University, she fought for hiring more Latino professors and admitting more Latino students. After Yale Law school, she became a prosecutor in New York and was later named to the Second Circuit Court of Appeals. The federal appeals courts are often the final step before the Supreme Court for cases. In the second circuit, Sotomayor authored more than 150 majority opinions – including a few that were ultimately overruled by the higher court.
Who is she as a justice? Sotomayor is the first Hispanic justice. She’s also been one of the most public facing – her memoir appeared on the New York Times’ best-selling list, she appeared twice on Sesame Street, once to adjudicate a dispute between Goldilocks and Baby Bear, and she helped drop the ball in Times Square on New Year’s Eve 2013. “She’s trying really hard to demystify the court, showing ‘You can be a justice too’,” Lithwick says.
Her former experience as a prosecutor and trial judge often leads her to challenge lawyers on the facts of a case, says Marcia Coyle, the chief Washington correspondent for the National Law Journal. “She knows how criminal trials operate,” Coyle says.
Justice’s Opinion: In a dissent to the court’s 5-3 ruling in Schuette v. BAMN, a case involving a ban on affirmative action policies, Sotomayor argued directly against the conservative justices in how the court should treat challenges to race-based laws.
“Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process… And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighbourhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No, where are you really from?’, regardless of how many generations her family has been in the country…. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.'”
On the court since: 31 January 2006
How he got to the court: Alito grew up in New Jersey in an Italian immigrant family. While at Princeton University, he was involved in conservative and libertarian groups, as well as the Army Reserve Officer Training Corps. After Yale law school, he was a prosecutor in New Jersey and served in the Reagan administration in the justice department, including as assistant to the solicitor general, where he argued before the Supreme Court. President George HW Bush named him to the Third Circuit Court of Appeals in 1990, where he stayed until his nomination to The Supreme Court.
Who is he as a justice? Alito is a conservative justice, but one who does not hew as often to originalism as fellow conservatives Scalia and Thomas. He is not always talkative in oral arguments but his questions are sharp, aiming to pick apart an argument’s logic. Alito has a low public profile despite being a large part of the court’s rightward shift on business, campaign finance and racial issues over the past decade.
The former prosecutor has been “very pro-government” in criminal cases, Coyle says, and has shown less willingness than his conservative colleagues to protect free speech in cases where it is harmful or hateful.
Justice’s Opinion: Alito wrote for the majority in a labour case, Harris v Quinn, in which the court ruled labour groups could not collect fees from Illinois home health care workers who did not want to join the union despite being covered by collective bargaining.
“If we accepted Illinois’ argument, we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidise speech by a third party that he or she does not wish to support.”
On the court since: 29 September 2005
How he got to the court: Born in New York and raised in Indiana, Roberts attended a boarding school as a teenager but also spent summers working in a steel mill. After considering becoming a historian at Harvard, he went to law school there instead, eventually clerking for then-Associate Justice Rehnquist. He spent many years as a lawyer in the Reagan administration then entered private practice, arguing before the high court and serving as one of several legal advisers to George W Bush in the Florida presidential recount case. Originally nominated to fill the spot left by retiring Justice Sandra Day O’Connor, Roberts was re-nominated for the chief justice position after Chief Justice Rehnquist died between terms, and his nomination was fast-tracked.
Who is he as a justice: A conservative justice, Roberts is the third-youngest Chief Justice in the court’s history, confirmed at 50 years old. Last year’s term saw more than half its cases decided unanimously, something many court watchers cite as the outcome of Roberts’ desire to foster agreement through narrower rulings. He also notably wrote the 5-4 opinion that shot down a major challenge to President Barack Obama’s healthcare law.
“I think he cares deeply about how the ‘Roberts court’ looks,” Lithwick says, and knows he can move the court slowly over decades.
“He doesn’t want huge swings, except in areas he feels very strongly about,” Coyle says, like government’s role in racial issues, campaign finance’s relation to free speech and the structure of constitution. Roberts also looks to keep decorum on the bench during oral arguments.
Justice’s Opinion: Roberts, writing for the majority in Shelby County v Holder, effectively knocked out a part of the Voting Rights Act which requires certain states to gain permission of the justice department before changing their voting laws.
“At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, “the Act imposes current burdens and must be justified by current needs”.
On the court since: 3 August 1994
How he got to the court: Breyer grew up in San Francisco with a lawyer father and a politically-active mother, attending Stanford, then Harvard Law. After clerking for Justice Arthur Goldberg, he moved into government, working as counsel in various positions in Congress, including as an assistant special prosecutor in the Watergate investigation. He spent a lengthy period of time on the First Circuit Court of Appeals and was considered for a Supreme Court nomination in 1991. It went to Ruth Bader Ginsburg instead. President Clinton went back to Breyer when Justice Blackmun retired from the court in 1994.
Who is he as a justice? Breyer believes the court needs to consider the history of laws, the intent of Congress and the consequences of its decisions. “He believes deeply in government and government processes,” Lithwick says.
Breyer, the king of the complicated hypothetical, has sought to “bridge gaps” in differences between the justices, Coyle says, by listening closely to find give-and-take between justices on an issue.
“Those hypothetical questions are really designed for his colleagues,” Coyle says. He did this last year while writing a 9-0 opinion in a politically charged case over the president’s power to appoint judges and other officials during Senate recesses. The ruling was narrowly decided against the president, and both the conservative and liberal wings were in agreement on the final judgement – but not all the details.
Justice’s Opinion: From the aforementioned 9-0 ruling, National Labor Relations Board v Noel Canning.
“There is a great deal of history to consider here. Presidents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President have recognised that recess appointments can be both necessary and appropriate in certain circumstances. We have not previously interpreted the Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.”
Ruth Bader Ginsburg
On the court since: 10 August 1993
How she got to the court: Another New Yorker, Ginsburg stayed in the state to attend Cornell and eventually transferred to Columbia Law School after first enrolling at Harvard. She was rejected from a Supreme Court clerkship after graduating because of her gender, according to the New York Times. As she moved into a teaching and litigating career, Ginsburg focused on women’s rights – starting the first law journal focused on the topic and arguing six cases before the Supreme Court. She was confirmed to the federal appeals court for the District of Columbia in 1980 and 13 years later, was nominated by President Bill Clinton for a seat at the top court.
Who is she as a justice? As the most senior justice on the court’s left wing, Ginsburg is often in charge of assigning dissents in highly controversial cases. She has used this power to write a “a string of barnstormers”, Lithwick says, including a case which expanded the religious exemptions to birth control insurance coverage, and another which made major changes to a law prohibiting racial discrimination in voting. The dissents, combined with her refusal to heed calls to step down during the first Obama term, has earned her a fan base and her own internet meme – Notorious RBG. “She’s the last vestige of an old guard of liberalism” on the court, Lithwick says, and the last civil rights lawyer on the bench.
Justice’s Opinion: In a dissent in Burwell v Hobby Lobby, Ginsburg wrote the court’s decision to expand religious exemptions to “closely held” corporations was in error.
“Indeed, until today, religious exemptions had never been extended to any entity operating in ‘the commercial, profit-making world’. The reason why is hardly obscure. Religious organisations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations.”
On the court since: 23 October 1991
How he got to the court: Thomas was born in a small town in Georgia, and was one of the few African-Americans in attendance during a short stint in seminary and then at Holy Cross College. But unlike Justice Sotomayor, those experiences made him distrustful of affirmative action policies. After finishing Yale Law, he worked in Missouri government and in Washington DC before being named chairman of the Equal Employment Opportunity Commission, an agency that responds to discrimination claims in the workplace. After a bruising confirmation hearing – in which a former employee accused him of sexual harassment – Thomas was narrowly confirmed to Supreme Court, at the relatively young age of 43.
Who ishe as a justice? Thomas’ originalism is exacting, including a disregard for stare decisis, respect for prior court rulings and precedence. Thomas has also not asked a question during oral arguments in nine years. He has previously said he doesn’t care for the question-heavy arguments, sometimes already drafting opinions based on written briefs before any lawyer gets up to argue. Thomas often files entirely separate dissents rarely joined by others, but Coyle says he is influential in other ways, including during conferences only justices attend, and in “difficult decisions” in areas that don’t get a lot of press – like intellectual property and tax law. Thomas replaced the first African-American justice on the court – Thurgood Marshall – and remains the only current black justice.
Justice’s Opinion: In a dissent to a 2011 case, Brown v Entertainment Merchants Association, Thomas argues it is a mistake for the court to overturn a California law banning the sale of violent video games to minors.
“But I do not think the First Amendment stretches that far. The practices and beliefs of the founding generation establish that ‘the freedom of speech’, as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.”
On the court since: 18 February 1988
How he came to the court: A Californian who grew up in a legal family, Kennedy attended Stanford University and LSE before going on to law school and taking over his father’s practice. His work with then-California governor Ronald Reagan led Reagan to recommend him for an appeals court position – a job he took at 39, as the youngest federal appeals court judge in the country at the time. Initially passed over for a Supreme Court nomination, Reagan again turned to him after his initial candidate, Robert Bork, was rejected by the Senate.
Who is he as a justice? Kennedy is the Supreme Court’s swing vote – often casting the deciding opinion in 5-4 cases. While Coyle says Kennedy has not “swung as often or hard [to the left]” as his predecessor in the swing vote spot, Sandra O’Connor, he has voted with the left-wing – and written the opinions – in major social issue cases like gay marriage. Kennedy’s animating principle for many of these decisions is whether laws allow for “dignity”, says Lithwick. Kennedy is also interested in what lessons other legal systems might have for the US. He seems to enjoy the arguments, and is closely watched for clues as to how he might rule. “They definitely help him – you can hear him during oral arguments working through a case.” Coyle says.
Justice’s Opinion: In the majority opinion for the 2013 gay marriage case, US v Windsor, Kennedy argues the Defense of Marriage Act (Doma), a law banning recognition of same-sex marriages is unconstitutional.
“Doma’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person…By this dynamic Doma undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition….And it humiliates tens of thousands of children now being raised by same-sex couples.”
On the court since: 26 September 1986. At more than 28 years, he is the longest-serving justice currently on the court.
How he came to the court: Born in New Jersey, Scalia moved to Queens, New York and excelled at school, eventually attending Georgetown and Harvard Law. After a stint in private practice, Scalia joined the Nixon administration and served in various positions – including as assistant attorney general for President Ford at the administration’s office of legal counsel. Before his nomination by Ronald Reagan for the Supreme Court, he was a judge on the US court of appeals for District of Columbia for four years.
Who he is as a justice? Scalia’s pointed opinions and memorable phrases (“legal argle-bargle”, “this wolf comes as a wolf”, “Alfred Hitchcock line of our jurisprudence”) have made him the most public voice of the court’s conservative wing. “He’s a craftsman and a wordsmith,” Lithwick says.
Scalia is an originalist and textualist, meaning he believes the US constitution should be interpreted only according to the original and ordinary meaning of the text. But his dissent in US v Windsor, 2013’s crucial gay marriage case, may have backfired on him. In the dissent, he sought to show how the decision was broader than advertised, sarcastically describing how the inevitable next case would fall. But half of the appeals courts who struck down marriage bans in challenges leading up to this term’s gay marriage case cited Scalia’s dissent literally. Scalia is also credited with bringing an aggressive “law professor” style of questioning to the court now used by most of the justices.
Justice’s opinion: In the dissent to US v Windsor, Scalia argues against the high court’s ability to even consider issues like same-sex marriage.
“This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandises the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.”