And consider a case any law-and-order TV show or movie devotee knows well without perhaps realizing it — the 1966 decision, formally known as Miranda v. Arizona, which triggered this now familiar warning: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney during interrogation. If you cannot afford an attorney, one will be appointed for you.”
The chief justice who shaped both landmark cases was Earl Warren, appointed in 1953 by President Dwight David Eisenhower, who later rued what he famously characterized as “the biggest damned-fool mistake I ever made.” Black people, suspects in criminal cases, even anyone trying to vote in 2012 — well, we certainly disagree with Eisenhower. But presidents don’t always get what they want in the political calculations that go into the naming of a justice who will serve for the rest of his or her life or until he or she retires. The next president will certainly appoint several justices during his tenure, and each of them comes with the real-world experience that brought them to prominence in the highest political-judicial circles.
Heck, Associate Justice Clarence Thomas — appointed to the court in 1991 by President George H. W. Bush (Bush 41) because he was black and, by judicial measures, relatively young (he was 43) — is married to Virginia (Ginni) Lamp, who is a very visible political lobbyist for conservative Republican causes. Can you imagine their pillow talk? She once told Fox News’ Sean Hannity: “There’s a lot of judicial wives and husbands out there causing trouble. I’m just one of many.”
Two of President Reagan’s four appointees, Associate Justices Antonin Scalia and Anthony Kennedy, are still serving more than two decades since Reagan left office. So is one of two Bush 41 appointees (Thomas). So are President Clinton’s two (Ruth Bader Ginsburg and Stephen Breyer), George W. Bush’s two (Samuel Alito and John G. Roberts) and Obama’s two (Sonia Sotomayor and Elena Kagan). Ginsburg is most likely to retire in time for the next president — Obama or Romney — to appoint a replacement for this reliably liberal-to-moderate jurist.
“If Romney wins, he will certainly not nominate a liberal,” says McLaughlin, “and will more likely nominate an extremely conservative justice to appeal to the Tea Party elements within his party. If that were to come to pass, numerous bedrock civil rights, civil liberties and women’s rights issues will be overturned as surely as night follows day.”
Neither Obama nor Romney possesses a crystal ball to tell him how his picks will vote over the long haul. Both men — as well as other members of the court — were certainly surprised in the health care ruling when Chief Justice Roberts sided with the Clinton and Obama appointees to uphold a measure that was a capstone of the Obama presidency.
When President Franklin Roosevelt named a former Alabama Klansman, Hugo Black, to the court in 1937, he certainly could not have foreseen that Black would become a liberal stalwart and a civil rights champion who is widely considered to have been one of the most influential jurists of the 20th century. In his 1971 obituary, United Press International wrote: “To Justice Black, who many observers believe influenced American life more than any of his colleagues in modern time, the Constitution was his bible.”
Without crystal balls, it is what we know about the character and the political needs of a president that should guide us when we enter the voting booths that the Warren court so generously opened.
E.R. Shipp, a Pulitzer Prize-winning journalist, is a frequent contributor to The Root.