The Big Question: What is the Supreme Court, and how is Barack Obama changing it?

Author: By Stephen Foley

Why are we asking this now?

Barack Obama has nominated Sonia Sotomayor, a New York appeals court judge, to
be the first Hispanic ? and only the third woman ? to sit on the US Supreme
Court. The story of her personal journey, the daughter of Puerto Rican
immigrants who grew up in the Bronx housing projects but went to Princeton
and Yale universities, elicited tears and applause at a press conference to
announce her nomination this week. The US press have dubbed it a “rags
to robes” story.

Why is there a vacancy?

These are big appointments, because they outlast the president who makes them.
Supreme Court Justices are appointed for life. Sotomayor is 54; she could
still be on the bench more than two decades from now, when Barack Obama’s
administration is just the stuff of history books.

She will be replacing David Souter, a liberal judge appointed by the first
President George Bush, who announced he wanted to resign just weeks after
Obama’s inauguration. Justices of a particular political persuasion usually
want to hang on until they can be certain they will be replaced by a judge
of a similar hue.

What is the role of a Supreme Court Justice?

There are nine of them, including the Chief Justice, who is currently John
Roberts, a conservative appointed by George W Bush in 2005. Together, they
form the highest court in the land, equivalent to the law lords in the UK,
and are charged with interpreting the constitution.

The Supreme Court is the one body that can strike down laws made in Congress,
if they are deemed unconstitutional, and it is the ultimate arbiter of
complex legal problems that might have numerous interpretations in lower
federal courts or in the courts of different US states. The might of the
Supreme Court is a powerful check on the legislative (Congress) and
executive (White House) branches of government, and in recent years it has
extended legal rights to Guantanamo Bay detainees and ruled that the
Environmental Protection Agency has the power to regulate carbon emissions,
all circumscribing policies of the Bush administration.

Why all the discussion of liberals and conservatives?

In a way that may be anathema to observers from the UK, Americans are very
conscious of the politics of their judges, and never more so when it comes
to the Supreme Court. The court currently splits 5-4 in favour of those with
a conservative interpretation of legal questions, although Anthony Kennedy ?
a moderate appointed by Ronald Reagan after two previous nominees failed to
win support from Congress ? sometimes sides with liberals.

Even after the replacement of Justice Souter, only three of its members will
have been appointed by Democrat presidents, reflecting the long period of
conservative dominance of the White House.

There is a line somewhere between “interpreting” and “making”
the law, and politicians ? and Supreme Court nominees ? are all expected to
insist that they disapprove of “activist judges”. But you need
look no further than the 1973 Supreme Court decision in Roe v Wade, which
struck out the country’s anti-abortion laws on the grounds that they
violated a woman’s right to privacy, to see that the Justices’ rulings can
have profound consequences.

Does that make the Court a major battleground in America’s culture wars?

That is certainly how it is viewed by special-interest groups, who put as much
money into fighting their way up the judicial branch as they do into getting
favourable laws out of legislators. Anti-abortion campaigners hope Roe v
Wade could be overturned, or undermined by a conservative Supreme Court;
campaigners for gay marriage hope that equal rights could one day be
enshrined by the highest court in the land.

Can we expect another big fight over Sotomayor?

Absolutely. Although Sotomayor is not known for any legal philosophy,
conservative groups are already going through her rulings as an appeals
court judge to see if they can divine any patterns that might galvanise
Republican opposition to her appointment and help block her confirmation by
the Senate.

Opponents of judicial activism are already pointing to a YouTube video of her
remarks, at a law school panel discussion, about the appeals court being “where
policy is made”. She will also be asked to defend her judgement that
struck out claims by a white firefighter that he had been discriminated
against because of affirmative action policies in his department. Beyond
that, die-hard conservatives are keeping their fingers crossed for other
revelations. “I have got my metal detector out,” Tony Perkins,
head of the Family Research Council, said ominously yesterday. It’s what any
good conservative activist would do when confronted with a liberal
nomination for the Supreme Court.

But she will be confirmed, right?

Barring some unexploded bombs unearthed by the conservative metal detector,
that seems the case. Not least of the reasons is that the Republican party
is lary of offending the Hispanic community, one of the fastest-growing
constituencies in the country and one among which it lost ground in the last
presidential election.

What does the President see in Sotomayor?

Mr Obama added “empathy” to the list of characteristics he wanted in
his first Supreme Court Justice, alongside the more traditional
prerequisites of a wide legal experience and an impressive intellect. That
stirred opponents, fretful that empathy with individual appellants might
overwhelm a Justice’s adherence to the impersonal edifice of American law.

Most of all, though, he sees a life story so compelling that it can
steamroller opposition to her appointment. It was hard not to hear echoes of
his own “improbable journey” as the president pointed at Tuesday’s
press conference Sotomayor’s mother in the audience, a woman who lost her
husband when her daughter was just eight years old and already diagnosed
with diabetes, a woman who had worked six days a week to buy encyclopaedias
to educate her daughter, and who had seen her win scholarships to the best
schools and universities in the land.

What will the appointment mean?

The injection of such emotional appeals into the Supreme Court nomination is a
unique and distinctly Obama-esque phenomenon, designed to reach over the
heads of the special-interest groups and political hacks of Washington who
normally dominate the process. Whether this is a phenomenon that outlasts
the current president remains to be seen.

It is not likely that her appointment to replace Justice Souter would change
the balance of the court, however. Sotomayor has not judged any significant
abortion, gay rights or death penalty cases, nor any on national security,
making her likely votes on these cases inscrutable. She is a Catholic
replacing an Episcopalian, a woman replacing a man, and the first Latina to
ascend the marble steps to the Supreme Court in Washington ? but the she is
also a liberal replacing a liberal, and this appointment may turn out to be
significantly less controversial significant than any Obama eventually gets
to make on the departure of a conservative.

Is Sonia Sotomayor’s appointment a big breakthrough?

Yes…

* The appointment of the first Hispanic Supreme Court justice is long overdue.

* Sonia Sotomayor’s inspirational story takes the nomination process out of
the hands of political hacks.

* She could ensure President Obama’s imprint on the court for a generation.

No…

* She is replacing a liberal justice, keeping the 5-4 conservative majority
the same.

* It is too early to tell how she will vote on “culture wars”
issues.

* The main significance of the appointment will be outside the court,
cementing Democrat gains among Hispanics.

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