Monday, January 10, 2011

Supreme balance shift

In her essay for "Women and International Criminal Law," our special edition of International Criminal Law Review (prior posts) now in production, IntLawGrrls guest/alumna Patricia M. Wald writes that

women judges (men too of course) have to be recognised as smart, fair, and hardworking if they are to wield influence ...
It appears the 2 newest arrivals to the U.S. Supreme Court got an advance copy.
Appears, too, they've heeded this sage advice from Wald, onetime Judge on the International Criminal Tribunal for the former Yugsolavia and Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit.
Judging from recent reports, 2 voices are likely to be heard once the Court takes the bench to hear oral arguments this morning: the voices, that is, of Justices Sonia Sotomayor (above left) and Elena Kagan (above right). (credit for Dec. 26, 2010, Steve Petteway/Supreme Court / photo, also depicting Justice Ruth Bader Ginsburg at center)
Since Kagan was seated at the beginning of this October Term 2010, "the tenor of the debate has changed," David Savage, Supreme Court correspondent for the Los Angeles Times, recently reported. For years, he wrote, "Supreme Court conservatives led by Justice Antonin Scalia dominated the debates during oral arguments." But now Sotomayor and Kagan "have joined the fray and reenergized the liberal wing."
Bolstering Savage's assessment was a report by New York Times Supreme Court reporter Adam Liptak. The title pretty much said it all: "Sotomayor Guides Court’s Liberal Wing." She does so, he wrote, by close questioning and incisive commentary that, taken in combination, reveal -- dare one say empathy? Liptak preferred to say that
she has displayed a quality — call it what you will — that is alert to the humanity of the people whose cases make their way to the Supreme Court.
An example of this combination, from an article by the Wall Street Journal's Jess Bravin, regarding a recent oral argument on California prison conditions:
'When are you going to avoid the needless deaths that were reported in this record?' Justice Sonia Sotomayor said at arguments on Tuesday. 'When are you going to get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?'
Amid reports that these new, "smart, fair, and hardworking" Justices may be shifting balance on the Court, Justice Scalia publicly renewed his attacks on substantive due process applied to enforce rights of women (and, here, gays).

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