First Supreme Court Justice Appointment for Obama

Today the New York Times announced that Supreme Court Justice Souter will be retiring at the end of the term in June. The Times article notes that this will be the first Supreme Court appointee for President Obama and the first appointee under a Democratic President in fifteen years. The two most recent appointments, Chief Justice Roberts and Justice Alito, were both under President George W. Bush. The confirmation process for these two slots on the Court were long and drawn out, and as the Times states, "intensely partisan and divisive moments in Washington". However, since the Democrats have such a large majority in the Senate, it does not seem as if President Obama will have as much trouble getting his nominee confirmed.

Justice Souter has expressed his disdain for Washington quite clearly and has apparently been telling friends since before the election that if President Obama won, he would be leaving the court. He was appointed by President George Bush, Sr. in 1990. Obviously, he was expected to be a conservative, but surprised many by becoming one of the most reliable members of the liberal side of the court. The Times article points out that replacing him with a liberal will not make any big impression on the overall ideology of the court. I have to disagree with that idea. Right now, there are five conservatives and four liberals on the court. Justice Kennedy, a moderate conservative, tends to be the swing vote in most circumstances. If Souter, who the Martin-Quinn Supreme Court Ideology Project scores as having about the same level of liberal leaning as Breyer and Ginsberg (which is less than the most extreme liberal on the Court: Stevens), is replaced by someone who does not have near that same level of liberal leaning, there can be many different outcomes. I am not saying to appoint an extreme liberal because I do not think that would have any type of positive effect on the court, in fact, I think it would make it more divisive. However, if President Obama appoints a Justice that is more moderate than Breyer and Ginsberg, the new Justice may be apt to side with the conservatives on more issues than the others would. This would definitely give the conservatives on the Court a clear advantage. Ideology is something that President Obama should carefully consider in the appointment of the new Justice, especaially when there are so many more extreme conservatives on the Court than there are extreme liberals.

Additionally, Mary L. Dudziak of the blog, Balkinization, wrote a post entitled: "What should Obama look for in a Supreme Court Justice?" defining what she thinks the most important issues the President should take into consideration are. Beyond mere ideology, I agree with Ms. Dudziak that the life experience of the appointee are invaluable in helping them to form their legal opinions. Justice Ginsberg has been an outspoken advocate for the rights of women, not only because she is a woman, but because she experienced the discrimination women all over America have faced (and some are still facing). Her ideas of possible experience that would bring the necessary kind of diversity to the court are stated by her as follows:

"The next justice must understand that legal principles are not simply abstractions but have immediate and long-term consequences in the lives of individuals and communities. Perhaps Obama's nominee will have represented clients in deportation hearings, served low-income families in a legal aid office, or advised gay and lesbian members of the armed services. At this moment in American history, a nominee who has represented detainees at Guantanamo could bring important insights into the court's deliberations and further signal a change in the nation's posture toward human rights."

She also states that the appointee should be someone who can bring the opposite ends of the Court together, a mediator of sorts. I could not agree with Ms. Dudziak more. I want a Justice who has seen the real problems of the country and actually experienced them, and I can not think of another President who I would legitimately expect to use that as criteria. However, I have faith that President Obama will pick someone who will bring real world experience to the bench as well build some bridges between the conservatives and liberals of the Court.

Supreme Court Rules on Warantless Car Searches

The Wall Street Journal Law Blog posted an article today regarding the case of Arizona v. Gant which was decided yesterday by the Supreme Court. This case was about defining when the police are allowed to search someone's car. Mr. Gant was arrested for driving on a suspended license and already sitting in the back of a police car when an officer searching his car found a gun and cocaine. Mr. Gant was sentenced to three years, but appealed his case to the Supreme Court of Arizona, where the conviction was thrown out. When the case made its way to the Supreme Court, they decided that the police did not have the right to search Mr. Gant's vehicle and to uphold the ruling of the Supreme Court of the State of Arizona. This case created unlikely alliances; the 5-4 decision had liberals and conservatives on both sides.

The New York Times article on this case states that this all started in 1981 with the decision of New York v. Belton. In this case, police officers were pretty much given the green light to search any car any person has been arrested in. However, the Justices in the majority of Arizona v. Gant, Justice John Stevens, Antonin Scalia, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg all felt that the ruling in New York v. Belton had been too broadly applied and needed limiting. The standard set forth in the decision of Arizona v. Gant is stated in the New York Times article as follows:

Vehicle searches should be allowed only in two situations, he wrote: when the person being arrested is close enough to the car to reach in, possibly to grab a weapon or tamper with evidence; or when the arresting officer reasonably believes that the car contains evidence pertinent to the very crime that prompted the arrest.

As someone who has personally experienced multiple warantless searches by police officers, (Tip for readers: Do not ever drive a black Camaro through Garfield, New Jersey; You'll be sitting on the side of the road for forty-five minutes while they search your car for drugs) I can completely understand why the Court has finally decided to restrict the ability of police officers to search your car. In the instances I am talking about, no arrests were made, so maybe the rules are different. However, I do not see any reason to search the car of someone who is arrested for a traffic violation. So many weapons and drugs charges merely piggy-back some sort of traffic violation. Watch Cops sometime, you'll see what I'm talking about. While I do not support drug use or illegal possession of weapons, I do greatly value privacy. If the person is arrested for some unrelated traffic offense, what you would find when searching their car is irrelevant. I think that too often police officers are given too much leeway as far as violating individual rights is concerned. It will be interesting to see how the police handle adjusting to this limitation on their power.

I also have to note that I was very surprised to see the way the Court split on this issue. I was shocked That Justice Stevens, the most liberal member of the Court, and Justice Scalia, one of the most conservative members of the Court, wound up on the same side of a case that was split 5-4. This was especially meaningful given the widespread impact this decision will have on Police Departments around the country. There is one thing I have not been able to figure out yet about this case, and maybe someone else can help:

I know that police officers now cannot search the vehicle of an individual who has been arrested unless there may be evidence of the crime in the car or the individual being arrested is close enough to the car to reach into to it. What I am wondering is if this applies to traffic stops where no arrest is made. I would assume that it does, but you can never be too sure with the number of needless laws in this country. Can the police just pull you over for a traffic violation and still search your car when no arrest is made? I have tried to find the answer to this question, but I have not been able to. Any input?

Lily Ledbetter Fair Pay Act

Last semester, I took a course focusing on the Supreme Court of the United States. During this course, the professor mentioned a case entitled Ledbetter v. Goodyear Tire and Rubber Company. This case was particularly disturbing to me, not only as a woman, but as a member of the workforce.

The details of the case are as follows:

Lily Ledbetter was an employee of Goodyear Tire and Rubber Company for many years. As an Area Manager, a position primarily filled by men, she was an easy target for gender discrimination. Over time, salaries of the employees in the same position were incrementally increased, but men in the same position as Ms. Ledbetter were raised higher, creating a disparity of pay that was evident even when evaluating the salaries of employees with less seniority than Ms. Ledbetter. Since this act of discrimination did not involve Goodyear Tire denying Ms. Ledbetter promotions or other comparable measures of workplace equity, it was completely unknown to the her that she was the victim of discrimination. Goodyear made sure to keep the earnings of employees strictly confidential from one another. When Ms. Ledbetter finally discovered the systematic discrimination that was taking place, she filed a law suit against her employer.

After rulings in favor of Ms. Ledbetter in lower level Courts, the case made it all the way to the Supreme Court of the United States, where the Court decided that since Ms. Ledbetter had not filed her claim within 180 days of the discriminatory act she had missed the statutory limitation to sue. The 5-4 ruling was extremely controversial, and Justice Ginsberg was so appalled with the decision that she wrote a lengthy dissent. Justice Ginsberg cited the fact that Ms. Ledbetter was unaware of the act of discrimination during the statutory time-frame and called the Court's reading of the governing law "parsimonious". Justice Ginsberg suggested that the legislature take action to remedy this apparent mistake by Justices in the majority.

The Supreme Court of the United States basically set a precedent with this ruling that any person who does not file a claim of discrimination within 180 days of said act does not have any right to seek justice in Court. Obviously in Ms. Ledbetter's case this became an unfair requirement, especially since she was unaware of the acts as they were happening. The dissenting Justices argued that this would be an unfair requirement in all similar situations. Congress clearly agreed, and remedied the situation by passing the Lily Ledbetter Fair Pay Act in 2009. The Feminist Law Professors Blog covered this event in a post written by David S. Cohen. Mr. Cohen remarks that it is not surprising that all Democratic Senators voted in favor of this bill, while only five Republican Senators voted to pass the measure (four of which were women).

The most disappointing portion of this scenario in my opinion is that political affiliation and ideology has such a huge impact on the laws of our country. A conservative leaning Court can change the whole way discrimination laws are applied, making it almost impossible to meet the requirements to win a lawsuit. It is not only a matter of the individual people and cases being impacted, but the precedent they set for future interpretation of our laws. Issuing a ruling that makes discrimination laws virtually unenforceable is just as bad as repealing them all together. Had that action been taken, perhaps the majority of the public would see that this is certainly cause for alarm.

A person cannot be required to take action before they know that they have been discriminated against. That would be like requiring someone to report a robbery before they even knew they had been stolen from. Luckily, Congress and President Obama made it their concern to right this wrong. The passing the Ledbetter Fair Pay Act was a step in the right direction. Hopefully, this type of action will not be necessary in the future, but when it inevitably is, I only hope for such successful utilization of the checks and balances system.