The Third Branch

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I learned the three branches of government from D.G. Gomedella, my 11th-grade civics teacher. I remember he emphasized how easy it was to forget the importance of the Supreme Court.

Many religious conservatives supported Trump in spite of his personal moral shortcomings. (Some would characterize that less diplomatically as selling their soul to the devil.) Even those I would characterize as “the reluctant right” recognized Trump would be able to nominate a Supreme Court Justice to replace deceased Antonin Scalia. Reluctant Trumpers were also hopeful he would get at least one other pick, and that wish is coming true with the retirement of Justice Anthony Kennedy. President Trump has nominated Brett Kavanaugh to succeed him.

Out of 205 accredited law schools in the United States, our constitutional jurisprudence is determined by two schools about 135 miles apart. Of the nine current justices, six attended Harvard Law School, the other three attended Yale. Several publications have commented despairingly on this, including the liberal Washington Post and conservative Business Insider. While our jurisprudential process should be shielded from political party hand-to-hand combat, nothing prevents it from being more representative.

Out of 113 justices in our nation’s history, all but six have been white men. The first woman appointed was conservative Sandra Day O’Connor. There are currently three women on the court — Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg. There have only been two African-Americans to serve on the nation’s highest court: Thurgood Marshall and Clarence Thomas. Five of the current justices are Catholic, three are Jewish and one is a Protestant. Oliver Wendell Holmes was the oldest member at 90 and Joseph Story was the youngest at age 32, the average age is 69.

The Constitution is quiet on requirements of justices. One, James Byrnes did not graduate from high school, (but later “sat” for the bar). Only two justices have been from North Carolina, James Iredell and Alfred Moore. No one from North Carolina has served on the court in over 200 years. The current salary for a Supreme Court justice is $244,000 a year; they hear approximately 80 cases a year.

A breakdown of the current justices is as follows: Chief Justice Roberts, 63, confirmed 78-22, George Bush, 2005; Anthony Kennedy, 82, confirmed 97-0, Reagan, 1987; Clarence Thomas, 70, confirmed 52-48, H.W. Bush, 1991; Ruth Bader Ginsburg, 85, 96-3, Clinton, 1993; Stephen Breyer, 80, confirmed 87-9 confirmed, Clinton, 1994; Samuel Alito, 68, confirmed 58-42, George W. Bush, 2006; Sonia Sotomayor, 64, confirmed 68-31, Obama 2009; Elena Kagan, 58, confirmed 63-37, Obama, 2010; and Neil Gorsuch, 51, confirmed 54-45, Trump, 2017.

There are currently five justices appointed by Republicans and four appointed by Democrats. However, putting the justices into neat ideological categories is not always easy. For example, Roberts wrote the majority decision upholding the Affordable Care Act. Some justices have defied expectations, such as Nixon-nominated Harry Blackmun who became an ardent liberal over his tenure on the court.

The Supreme Court’s importance in establishing the parameters of legislative lawmaking and on the chief executive cannot be overstated. As an attorney who practices in the trenches every week, I can tell you we take for granted many freedoms, and unfortunately, they go unnoticed unless, and until, our own sphere is affected.

Certainly the specter of a fight over Roe v. Wade is forefront in the minds of many liberals and conservatives. The scrutiny the current nominee will face during confirmation hearings will be unprecedented — surpassing even the sometimes X-rated Thomas hearings — reflecting the importance of the decision to women’s reproductive rights, and the passion of those who oppose abortion. Unfortunately, the court is ill suited as a mechanism for finding acceptable middle ground on controversial issues.

There are currently two liberal justices over the age of 80, Breyer and Ginsburg. Both have consistently taken positions deemed liberal in their rulings. There are important cases to be heard regarding redistricting, voter identification laws, race as a diversity criteria in college admissions, immigration, and a plethora of other cases that will continue to define for generations the proper role of government in numerous contexts. More than anything Trump does, his selections to the court will arguably define his legacy.

Observations from the unwashed but well read ... And if you think our national politics discourse has been vitriolic, to quote Bachman Turner Overdrive, “Bbbb Baby, you ain’t seen nuthin yet ...”

Mr. Morris lives in Erwin. Contact him at tcmlaw5@aol.com.

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