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Sunday, November 27, 2011

In The Spotlight - The Supreme Court of the United States

In The Spotlight - The Supreme Court of the United States

Thoughts And Background On The ‘Roberts Court’

By Dell Hill

The makeup of the United States Supreme Court has never been more important than it is today.  And it gets more important with each passing day.  Despite its Constitutional intent, the court is now a semi-political body of jurists at the highest level of law and it shows no sign of drifting back to a body unaffected by political persuasion or activism.

Meet the “Roberts Court”:

Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

It’s referred to as the “Roberts Court” by virtue of the fact that all editions of the countries highest court have taken on the name of its Chief Justice.

Some dry-reading - but important - background from Wiki:


The Constitution provides that justices "shall hold their offices during good behavior" (unless appointed during a Senate recess). The term "good behavior" is well understood to mean justices may serve for the remainder of their lives, although they can voluntarily resign or retire. A justice can also be removed by Congressional impeachment and conviction. However, only one justice has been impeached by the House (Samuel Chase, in 1805) and he was acquitted in the Senate. Moves to impeach sitting justices have occurred more recently (for example, William O. Douglas was the subject of hearings twice, once in 1953 and again in 1970), but they have not reached a vote in the House.

No mechanism presently exists for removing a justice who is permanently incapacitated by illness or injury, both unable to resign and unable to resume service.

Because justices have indefinite tenure, timing of vacancies can be unpredictable...


As of the October 2010 term of the Court, the Court consists of five justices appointed by Republican Presidents, and four appointed by Democratic Presidents.

It is popularly accepted that Chief Justice Roberts and Justices Scalia, Thomas, and Alito comprise the Court's conservative wing. Justices Ginsburg and Breyer are generally thought of as the Court's liberal wing; after one term on the Court, Justice Sotomayor is also seen as a member of the liberal wing, voting much as her predecessor, Justice Souter, might have voted. John McGinnis, a law professor at Northwestern University School of Law, stated that Sotomayor "appears to be a typical member of the liberal wing", but noted that experts have said justices do not come into their own until they have served five years or so, pointing to Souter's first year as an example; however, McGinnis also noted that Sotomayor has a longer judicial track record than Souter did. According to statistics compiled by SCOTUSblog, during the 2009 term Sotomayor agreed most often with Ginsburg and Breyer (90% of the time in full, in part, or in judgment, second only to the 92% agreement between Scalia and Thomas), and disagreed most often with Scalia and Alito (31% of the time).

Justice Anthony Kennedy, generally considered a conservative who "occasionally vote[s] with the liberals", is often the swing vote that determines the outcome of close cases.


While reams have been written about the makeup and current activism phase of the Roberts Court, it goes without saying that SCOTUS rulings from this panel of jurists will very likely have an enormous effect on the nation’s history...And some would go so far as to say “THE most effect”.

Health Of The Jurists

It’s impossible to predict if and when an Associate Justice or the Chief Justice might be afflicted with debilitating injury, illness or worse, it’s reasonably safe to conclude that with but one exception, the panel is in good health.  That one exception is Associate Justice Ruth Bader Ginsburg.

“Ginsburg was diagnosed with colon cancer in 1999 and underwent surgery followed by chemotherapy and radiation therapy. During the process, she did not miss a day on the bench. On February 5, 2009, she again underwent surgery related to pancreatic cancer. Ginsburg's tumor was discovered at an early stage. Ginsburg was released from a New York hospital, eight days after the surgery and heard oral arguments again four days later. On September 24, 2009, Ginsburg was hospitalized for lightheadedness following an outpatient treatment for iron deficiency and was released the following day.

With the retirement of John Paul Stevens in 2010, Ginsburg became, at 77 years of age, the eldest justice on the Court.  Despite rumors she would retire as a result of old age, poor health, and the death of her husband, she denied she was planning to step down. In an August 2010 interview, Ginsburg stated that the Court's work was helping her cope with the death of her husband and suggested she would serve until at least 2012 when a painting that used to hang in her office is due to be returned to her.  She also expressed a wish to emulate Justice Louis Brandeis, who retired at 82, an age that Ginsburg would attain in 2015.”


It has also been widely reported that Justice Ginsburg has assured President Barack Obama that she will remain on the court as long as possible to assure the Liberal view of the court is maintained at a 5-4 ratio.  Should Obama be re-elected, of course, she would be then free to retire, knowing that her replacement would also have Liberal leanings.

Such a replacement would give Obama the opportunity to directly appoint one-third of the nine member panel of justices.  And given Justice Ginburg’s own statements, the next president will make at least one Supreme Court appointment.

Under that same scenario, It could be conjectured that if one of the Conservative members were to retire or be unable to perform his duties, Obama would then be in a position to name yet another associate justice, causing a political shift to a Liberal court in the same 5-4 ratio of political makeup.

Assuming NO changes in the makeup of the court over the next several months, the matter of mandatory federal health care (Obamacare) will become the most famous ruling from SCOTUS since Roe v Wade - probably even more famous, considering that the law is the centerpiece and legacy of the 44th President of the United States.  A ruling on Obamacare is expected, possibly as early as late June of 2012.


Calls from both sides of the aisle have been made for at least three of the current associate justices to recuse from hearing the Obamacare litigation.

Democrats say that Justice Thomas should recuse because his wife has a history as an activist and opposes such legislation/law.  Republicans say that Justice Kagan and Justice Sotomayor should recuse because of their close association with the Obama administration - especially during the deliberation phase of the legislation up to the time of its controversial passage.

While recusal is always a possibility, it’s not seen as likely, no matter how strong the argument(s) might be in favor.  And a justice cannot be forced to recuse under any circumstances.  If a case for recusal became so blatant as to rise to the level of “wrong doing”, that justice could be impeached, but it would take one party with total control of the House and Senate to secure a conviction, and, while that is always possible, it’s not currently seen as likely.  Republicans, for instance, would have to retain overwhelming control of the House and take at least a 59-41 margin in the Senate in order for an impeachment to have any chance of success.  (Note:  the president cannot veto or in any way take action to exonerate an impeached federal judge or member of congress.)

Given the criticalaty of the pending court decision(s), it would be reasonable to ask what sort of protection from harm the Supreme Court Justices are given.  We’ll broach that subject in a future post.

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