Shortly before the commencement of Senate confirmation hearings for former NYU School of Law adjunct professor Judge Sonia Sotomayor, ultimately resulting in her recent swearing-in on August 8 as the newest Supreme Court justice, Richard Pildes, Sudler Family Professor of Constitutional Law, took part in a panel discussion about the Supreme Court at the National Constitution Center in Philadelphia. Titled “A Supreme Court Review,” the program, recorded as a podcast on July 8 and later released online, also included Miguel Estrada, former assistant to the solicitor general of the United States, and Dahlia Lithwick, senior editor and legal correspondent for Slate. The panelists, along with moderator Lyle Denniston, a veteran Supreme Court correspondent for SCOTUSblog, covered the most significant rulings of the Supreme Court’s 2008-09 term as well as the impending retirement of Justice David Souter, whose vacant seat would be filled by Sotomayor.

Lithwick noted that 23 of the term’s 74 cases were decided 5-4 and that “this, yet again, was the term of Anthony M. Kennedy. Anyone who thinks this is not, in effect, a Supreme Court of one was proven wrong this term.” The justice, she added, was in the majority 92 percent of the time and acted as “the fulcrum on which everything else rotates.... This is a deeply divided court ideologically.”

Responding to Lithwick’s thoughts about the divisions among the justices, Estrada said that “unanimity is overrated. No case gets to the Supreme Court of the United States unless there is a raging disagreement in the lower courts.... Something would be horribly wrong with our justice system if a lot of cases ended up 9-0 at the Supreme Court when half of the judges in the country are going the other way.”

In his remarks, Pildes discussed the case Northwest Austin Municipal Utility District Number One v. Holder, in which the Court ruled narrowly on the practical issues rather than overturning a key provision of the Voting Rights Act of 1965, as a number of observers had anticipated. Since the 1960s, Pildes explained, the Court had overseen through the Constitution the practical workings of American democracy, which he deemed an “underappreciated area of what the Court does.... Now, virtually no matter where you look with respect to the political process, to elections, to basic democratic processes, the Court and constitutional law plays a major role.... All of these issues and many, many more the Court now regularly, every term, addresses, and often in major ways that have direct practical consequences for the way we experience our democratic processes.”

Recalling how he and others had warned Congress about “serious constitutional questions” when testifying in advance of the 2006 renewal of the Voting Rights Act, Pildes pointed out that the suggestions went unheeded and argued that the Court’s opinion was a warning to Congress. “Now, will Congress address it? No. They won’t address it for the same reasons that they almost unanimously approved the act without any changes a few years ago. Politically it’s a very charged, no-win issue for members of Congress.... Unless the Court strikes the statute down and holds it unconstitutional, I don’t think Congress will actually revisit these questions about what a modern Voting Rights Act ought to look like.”

Cases involving civil rights highlight the Court’s broader social role, Pildes said. “If there is a serious conversation about race and public policy going on these days, I do think it goes on more in the Supreme Court than most other places, because the Court demands evidence, it demands reasons, it looks at justifications, it looks at burdens on third parties—but by no means is the Court across the board holding affirmative-action policies unconstitutional. It’s looking at each program as it arises.”

Near the end of the discussion, Pildes praised Souter, who was stepping down after 18 years as an associate justice. Interpreting Souter’s retirement as an act of humility, Pildes said, “I wonder if there’s another justice who would retire at this stage of a career without health issues, without some other compelling reason. It takes an enormous act of will to leave that institution. You have incredible power, you do not have to work very hard, you’re not very accountable, and most of them do not leave until they absolutely have to. As people live longer we’re getting justices who serve an incredible number of years, which I’m not sure is healthy for the American political and legal system as a whole.”

Read more about Northwest Austin Municipal Utility District Number One v. Holder, including further commentary about the Voting Rights Act by professors Richard Pildes and Samuel Issacharoff, as well as by Debo Adegbile '94, who argued the case before the Supreme Court

Read about Sonia Sotomayor's nomination to the Supreme Court

Posted on August 11, 2009