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No judging how a justice will turn out

The upbringing and life experiences of Supreme Court picks are not always reliable predictors of where they stand legally.

May 26, 2009|David G. Savage and James Oliphant

WASHINGTON — Several years ago an Alabama prisoner sued three guards after he was handcuffed to a post with his arms above his shoulders. He was left in the hot sun without a shirt for seven hours. His case eventually made it to the Supreme Court.

To Justice John Paul Stevens, who was born into a wealthy family in Chicago, the punishment was cruel and unusual. He spoke for a 6-3 majority and said inflicting "wanton and unnecessary pain" on a prisoner violated the Constitution.

Justice Clarence Thomas, who was born into poverty in rural Georgia, dissented. He faulted his colleagues for imposing their "own subjective views on appropriate methods of prison discipline."

The Supreme Court careers of Stevens and Thomas offer a cautionary note on predicting how the life and experience of a justice might influence his legal decisions.

This week, President Obama is expected to decide on his first nominee to the high court, and he has said he wants someone who has "the heart, the empathy" to put themselves in the place of someone less fortunate. He has spoken of a judge who can "recognize what it's like to be a young teenage mom" or "what it's like to be poor or African American or gay or disabled or old."

Obama, who was a community organizer on Chicago's South Side before he went into politics, has said he is focused on those who weigh the law's effect on "the daily realities of people's lives," not on "some abstract legal theory or footnote in a case book."

Along with that criterion, Obama is expected to choose a woman to replace retiring Justice David H. Souter.

The lone woman on the court, Justice Ruth Bader Ginsburg, has not been reticent in criticizing her colleagues for failing to consider the effect the court's decisions have on ordinary people -- or for relating to the plight of women in the workplace.

Last week, Ginsburg dissented in a workplace discrimination case, complaining about a decision the all-male majority made that denied female workers at AT&T Corp. credit toward their pensions for time they took off for maternity leave.

In another example of why it is perilous to assume a judge's gender or background contributes to their worldview, one of the candidates on the president's short list for the high court took an approach opposite that of Ginsburg.

Judge Diane P. Wood of the U.S. 7th Circuit Court of Appeals in Chicago, who was interviewed by Obama for the court last week, rejected a claim similar to those made by the plaintiffs in the AT&T case, and the company cited her decision as one reason why the Supreme Court should take the case. In a decision written by Souter, the court agreed with Wood's view of the case.

Another leading candidate for the high court, Judge Sonia Sotomayor of the U.S. 2nd Circuit Court of Appeals in New York, has said that her gender and Puerto Rican heritage affect her decisions.

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," Sotomayor said in a 2001 speech at UC Berkeley.

The Supreme Court's history is full of justices whose early life and career did not predict whether they would have the "heart" and "empathy" to identify with the plight of others unlike themselves.

When Earl Warren became chief justice in 1953, he came with a reputation as a tough prosecutor in Oakland and as a state official who called for imprisoning thousands of Japanese Americans during World War II. He went on to lead the court in ending racial segregation in the South and giving new rights to criminal defendants.

Shortly after Alabama's Hugo Black joined the court, it was revealed that he had once been a member of the Ku Klux Klan. For the next 30 years, however, he was one of the court's strongest advocates for civil rights.

When Souter was chosen for the court in 1990, some critics, including women's rights groups, questioned whether his solitary life as a bachelor in a small New Hampshire town would give him the depth of experience to understand the diverse lives and struggles of Americans.

A year later, when the 43-year-old Thomas was fighting for confirmation, several senators said his up-from-poverty life in the segregated South would make him more sensitive to the struggles of others, especially those who were poor and black.

Neither forecast proved accurate.

Souter won praise through most of his career from many of the liberal groups that opposed his nomination. And Thomas said his duty was to follow the original meaning of the Constitution, period.


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