The Supreme Court and Change

The Robert H. Jackson Lecture

Chautauqua Institution, July 25, 2006

Linda Greenhouse

The term that ended just short of a month ago was a period of long-awaited change at the Supreme Court. There was the first personnel change in 11 years, marking the end of the longest period of stability in the court’s membership since the 1820’s. Two new justices joined the court in a single term for the first time since Justices Lewis Powell and William Rehnquist joined the court during its 1971 term.

With personnel change, of course, comes institutional change, although after only one term, we don’t know the full dimensions of that change, and may not for some time. Justice Byron White, who served on the court for 31 years, liked to say that when a new justice joins the court, “it’s a new court.” In any event, the Roberts court is and will remain for quite some time a work in progress.

My interest today is actually better expressed not so much by that famous quote from Justice White, but by a question posed by, of all people, Justice Robert Jackson. “Why is it,” he asked in the preface to his book The Struggle for Judicial Supremacy, “that the court influences appointees more consistently than appointees influence the court?”

Indeed, what makes the court so fascinating as an exercise in small group dynamics is the relationship between personal and institutional change. Justices have an impact on the institution, obviously. The impact of the institution on the individual justice is a bit more elusive, less obvious but no less important. My own work in the papers of Justice Harry Blackmun, which led to my book, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey, published last year, brought this subject home to me and whetted my appetite for a broader ranging examination of personal change on the Supreme Court. The invitation to give this lecture led me into a broader inquiry, which is ongoing. It’s a very rich subject, and I hope to explore it with you, first by looking in some detail at the case, and career, of Harry Blackmun, and then by suggesting some general observations that might be worth keeping in mind as we watch the new Roberts court unfold.

I’m surrounded here in Western New York by experts in the life and career of Justice Robert Jackson, and I can’t presume or pretend to be such an expert. But my topic is clearly an appropriate one for the Jackson Lecture, because Justice Jackson himself personifies my theme. In fact, in 1941, when he published his book and posed his provocative question about the impact of the institution on the individual, he could not have imagined how close to home that question would be for him.

Robert Jackson took his seat on the Supreme Court on July 11, 1941, and served until his death on October 9, 1954 at the age of 62. Thirteen years is not a long tenure on the Supreme Court, and Jackson’s 13 years included a year of service as the chief prosecutor at the Nuremberg war crimes trials. It was an amazingly consequential period in the life of the country, with Pearl Harbor at the beginning; World War II and the beginning of the Cold War, including the Korean War, in the middle; and Brown v. Board of Education at the end. The country changed, the court changed, and there is no doubt that Robert Jackson changed as well.

Two opinions, one from the beginning of his tenure and one from near the end, demonstrate how much he changed. The later opinion, his concurrence in the steel seizure case of 1952, Youngstown Sheet & Tube Co. v. Sawyer, is very famous. The earlier one is almost unknown except to scholars, because it was never issued. It was a separate opinion he wrote and then decided not to published in the summer of 1942, when the court was considering the Quirin case, on the constitutionality of the wartime military commission that tried the eight Nazi saboteurs, leading to the execution of six of them.

As a case about the dimensions of the wartime powers of the president, the Quirin case remains relevant. The court unanimously upheld President Roosevelt’s use of the military commission that tried the saboteurs, finding, in contrast to the court’s conclusion last month in the Hamdan case, that Congress had authorized the president’s action. The court in Quirin thus did not have to reach or resolve the deeper question of whether in the absence of congressional authorization, the president would have possessed the inherent authority to proceed as he wished. Jackson believed that the court should have reached this question and should have decided it in the affirmative. The saboteurs, he wrote in his unpublished opinion, “are prisoners of the president by virtue of his status as the constitutional head of the military establishment.” And, he added, “the custody and treatment of such prisoners of war is an exclusively military responsibility.” In other words, it was the president’s business, not the business of Congress or the federal courts. Jackson’s suggestion was that the Supreme Court should not even have undertaken to review Roosevelt’s exercise of his commander-in-chief authority.

Yet just 10 years later – the blink of an eye in Supreme Court terms, or maybe that’s just my perspective, having covered the court for 28 years – Robert Jackson expressed a very different view of presidential authority. During the Korean War, acting in what he deemed to be the national interest, President Truman seized the steel mills to prevent the nation’s manufacturing capacity from being crippled by a steel industry strike. Truman invoked his inherent authority as chief executive and commander-in-chief. The Supreme Court ruled that without congressional authorization, the action was invalid. Justice Jackson wrote a concurring opinion that has come to be seen as the most eloquent expression of limitations on presidential authority, an opinion that has lost none of its relevance and that was cited by the Supreme Court as recently as the final day of its last term. When the president acts pursuant to an express authorization from Congress, Jackson said, his power it at its peak, “for it includes all that he possesses in his own right plus all that Congress can delegate.” When the president acts without congressional authorization, Jackson said, he enters a “zone of twilight” and uncertainty. And “when the president takes measures incompatible with the expressed or implied [note: implied] will of Congress, his power is at its lowest ebb.”

Was this the same Robert Jackson, the president’s man in the Quirin case? There is considerable scholarship devoted to explaining his evolution, and I will only hint at it here. Clearly, his trajectory calls for some sort of explanation. One is that in the Quirin case, arising as it did during the first year of Jackson’s tenure on the court, he was still very much FDR’s man. Arriving in Washington from Jamestown early in the administration to be chief counsel of the Internal Revenue Service, he quickly became head of the Justice Department’s Tax Division; then head of its Antitrust Division; then Solicitor General, in charge of representing the government before the Supreme Court; and then attorney general. By 1952, he was a seasoned Supreme Court justice who had seen at first hand, during his year at Nuremberg, the dire consequences of concentrated and unchallenged executive power. Not to equate Harry Truman with Adolf Hitler, as obviously Jackson did not, but Jackson certainly had a different perspective by the time he encountered the steel seizure case. As he had so presciently observed 11 years earlier, the institution and the life experience he had gained while serving there had changed him.

To see how Supreme Court justices change, we don’t have to go back as far as Robert Jackson or even as far as Harry Blackmun, who retired from the court in 1994. We can look at Justice Sandra Day O’Connor, whose tenure on the court at 24 years was almost exactly as long as Blackmun’s, and who retired in January as a very different justice from the one who arrived from Arizona in 1981, or the one who spoke disparagingly of Roe v. Wade in 1983, or even the one who in 1992 published a tribute to the newly retired Thurgood Marshall in which she described Marshall as an embodiment of “moral truth.” The experience of knowing and working with Thurgood Marshall, O’Connor said then, of sitting with him at conference for 10 years, “would, by and by, perhaps change the way I see the world.”

It seemed an odd sentiment from a justice whose jurisprudence at that time appeared to bear little of Thurgood Marshall’s imprint, certainly not in the core areas of voting rights and racially conscious affirmative action. Yet “by and by,” as we all know, came to pass. Sandra O’Connor led the court in reasserting a role for affirmative action in university admissions in Grutter v. Bollinger, the University of Michigan Law School case, in 2003. Now, with Justice O’Connor gone, it may be no coincidence that the court has agreed to revisit the question of race and education; in the fall, the justices will hear two cases, one from Louisville and the other from Seattle, on the constitutionality of race-consciousness in the drawing of attendance-zone lines by public school systems struggling to maintain school-by-school integration. I don’t have much doubt that early in her career, Justice O’Connor would have found these policies highly problematic if not constitutionally unacceptable, while later she would probably have agreed with Judge Alex Kozinski’s view, expressed in an opinion concurring with the en banc Ninth Circuit in the Seattle case, that this was the kind of pragmatic policy decision, taken by democratically accountable officials, with which federal judges should not interfere.

I will return in a moment to Harry Blackmun. But first, it must also be acknowledged that change during a justice’s career on the Supreme Court is hardly a given. Let me offer you a dissenting opinion issued late in the 2004 Term that bears the name of Justice Clarence Thomas. The question in Deck v. Missouri was the constitutionality of shackling a defendant in the presence of the jury during the sentencing phase of a criminal trial, in this case a capital sentencing proceeding for a man who had been convicted of shooting an elderly couple to death in the course of robbing them.

The routine use of visible shackles during the guilt phase of a criminal trial has long been forbidden under a rule that has deep roots in English common law, based on the presumption that the sight of a defendant tied up like a mad dog would naturally prejudice the jury. But surprisingly, the use of shackles during the punishment phase of a capital case was an open question in American law. By a majority of 7 to 2, Thomas and Scalia dissenting, the court ruled in Deck v. Missouri that for constitutional purposes, the two situations were the same, and that the use of shackles during the sentencing phase without special justification violates the defendant’s right to due process.

We know that Justice Thomas is a traditionalist and self-described “originalist,” but he argued in his dissenting opinion that tradition should not apply. Modern day shackles were different from the pain-inducing shackles of olden times, he said. “The belly chain and handcuffs are of modest, if not insignificant weight,” he wrote. “Neither they nor the leg irons cause pain or suffering, let alone pain or suffering that would interfere with a defendant’s ability to assist in his defense at trial.” Given that a defendant during a sentencing hearing stands before the jury as one who has already been found guilty, he said, “the court’s holding defies common sense.”

I found this opinion quite startling, yet it received very little attention, in the press or on the blogs or among academic commentators. Perhaps that is because we are all inured to Justice Thomas. After all, it was in Hudson v. McMillian, during his first term on the court, that he dissented from a decision holding that the use of excessive force against a prison inmate can violate the Eighth Amendment’s prohibition on cruel and unusual punishment even if no serious injury results. The Framers, Thomas said, “simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment.” The 45-year-old Clarence Thomas let us know then, in the opening months of his tenure, what kind of justice he would be.

Which brings us back to Harry Blackmun, and the justice he became. Harry Blackmun was 61 years old when Richard Nixon, in an increasingly desperate search for a confirmable law-and-order nominee, named him to the Supreme Court in 1970. Before the choice was final, Attorney General John Mitchell had asked a young Justice Department lawyer to vet Blackmun’s record on the Eighth Circuit. Assistant Attorney General William H. Rehnquist, discharging that assignment, pronounced Blackmun acceptable – that is, professionally respectable and acceptably conservative.

And indeed, the early Justice Harry Blackmun offered few surprises. The first major constitutional confrontation during his tenure on the Supreme Court was over the death penalty, and when the court invalidated every death penalty statute in the country in Furman v. Georgia in 1972, Blackmun dissented. When the court ruled against the Nixon Administration’s effort to stop publication of the Pentagon Papers, Blackmun dissented.

In 1973, he wrote the opinion for the court in United States v. Kras, a bankruptcy case that challenged the constitutionality of requiring a $50 fee as a condition of filing for bankruptcy. Could the statute be applied to one who was too poor to pay? Blackmun was skeptical of the respondent Robert Kras’s claim that he could not afford the $50. Kras had turned down the chance to pay the fee in installments, $1.28 a week for nine months, Blackmun noted in the memo he wrote to himself before the argument in the fall of 1972. In his opinion for the court rejecting the constitutional challenge to the filing fee, he wrote dismissively that Kras could have paid the fee for a weekly installment of “less than the price of a movie and little more than the cost of a pack or two of cigarettes.”

The dissents were stinging. “The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity,” Thurgood Marshall wrote. William O. Douglas, another of the four dissenters, wrote about the case some months later in his memoir, Go East, Young Man, observing that “Never did I dream that I would live to see the day when a court held that a person could be too poor to get the benefits of bankruptcy.”

Blackmun was undeterred. He was gratified more than a year later to hear from the government lawyer who had argued the case that Kras had paid the $50 in full barely a month after the decision. “I always had a feeling that there was something wrong with this case,” Blackmun responded to the lawyer. In an “I-told-you-so” gesture, he then circulated the lawyer’s letter to the dissenters.

Yet barely four years later, we see a very different Harry Blackmun, confronting the rights of the poor in another context that evoked from him a much different response. A trio of cases reached the court during the 1976 term on the question of the government’s obligation to pay for abortions for women who could not afford them. The Roe v. Wade majority of three years earlier fractured over this question and left Blackmun in dissent, abandoned by Potter Stewart, Lewis Powell, and Warren Burger, all members of the Roe majority, and by John Paul Stevens, the newest member of the court, who had succeeded Douglas. Blackmun was left to speak for the poor in his dissenting opinion in Beal v. Doe, one of the most powerful dissents of his career. “There is another world ‘out there,’ the existence of which the Court, I suspect, either chooses to ignore or fears to recognize,” he wrote.

Was this the same justice whose tone had been so dismissive, even smug, in the bankruptcy case just four years earlier? What was happening to Harry Blackmun?

It’s the thesis of my book that what transformed him was the fortuity of having been assigned by his childhood friend, Chief Justice Burger, to write for the court in Roe. Blackmun was shocked by the public response to Roe – not only by the criticism of the opinion and its outcome, but by the way in which he personally was vilified and lionized. He was the one who got the hate mail, letters by the tens of thousands (he saved them all and gave them to the Library of Congress, which decided to preserve only a random sample); the death threats; the pickets wherever he went for the rest of his career. And on the other side, he was the one who became a hero to women’s groups in whose cause he was at most a reluctant foot soldier, if that: Roe, after all, was about the rights of doctors, and only incidentally about the rights of women.

Initially, Blackmun resisted the efforts by both sides to attach Roe to him personally. It’s not my opinion, he would say. It was the opinion of the court. The vote was 7 to 2. I received the assignment and I discharged it. But the personification was so relentless that eventually, perhaps inevitably, Blackmun did incorporate Roe v. Wade into his self-image in a profound way. He was not only the father of abortion rights in America, in his own mind, but he devoted himself to becoming the defender of those rights as the climate changed both outside the court and within it. I say “perhaps inevitably” because someone with a different personality structure might have reacted differently. It’s hard to imagine a William Brennan collecting his hate mail and brooding over it. But throughout his life, Blackmun displayed a tendency to personify events around him. He dwelled, he brooded, he was in pain – and in the process, he became attuned to the pain of others: to “poor Joshua” of the DeShaney case, tragic victim of an abusive father and inadequate government safety net; to those who found their way to death row through incompetent legal counsel and judicial shortcuts; to women who were victims of sex discrimination, a concept for which the court had no constitutional language at the time it confronted the abortion cases, and to which Harry Blackmun eventually came around in a quite grudging and ultimately rather improbable alliance with his future colleague, Ruth Bader Ginsburg.

How might the Harry Blackmun of 1970 evolved had Warren Burger chosen someone else for the assignment in Roe v. Wade, if Roe never became for Blackmun more than just another case? Or if Roe had not become so embattled both inside the court and out, leading Blackmun to assign himself the mission of defending it against all enemies? Of course we’ll never know the answer to either of those questions. But there are major areas of his jurisprudence that can plausibly be seen as grounded in Roe, or at least in how he experienced Roe.

Commercial speech, for example: without Roe, would the commercial speech claim in Bigelow v. Virginia have caught his interest? The speech at issue in that case was an advertisement for an abortion referral service. In writing for the court that the advertisement was deserving of First Amendment protection, Blackmun launched a reappraisal of commercial speech that went on to bring us, for better or worse, advertising by lawyers, doctors, and other professionals and the robust and sometimes controversial corporate speech that fills the airwaves today. It was one of his most important doctrinal contributions.

I think it is likely that he would not have so passionately taken up the cause of poor women in the abortion funding cases, cases that helped move him away from his initial doctor-centered view of the abortion right and toward his eventual embrace of a unified jurisprudence of women’s rights and abortion rights. How he eventually got there is a long story, but I will give you just one example from his papers of how far he had to come. Early in the court’s 1973 term, a pair of cases arrived at the court challenging the then common practice by public school systems of requiring teachers to take unpaid maternity leaves midway through the pregnancy, before their vulnerable young students could notice anything; presumably, it was less traumatic for the students if their invisibly pregnant teachers suddenly disappeared.

Most of the justices thought these policies were unfair, but three years before Craig v. Boren made sex discrimination subject to heightened judicial scrutiny, these justices lacked the constitutional vocabulary to express what, exactly, the problem was. In a memo that Blackmun wrote to himself while preparing for the argument in one of the cases, Cleveland Board of Education v. LaFleur, we can see him struggling to get a handle on the issue:

It is easy to say initially that any regulation which relates to pregnancy is automatically and per se sex discriminatory. I am not at all certain that this is necessarily so. Actually, what the regulation does is to draw distinctions between classes of women, that is, those who are pregnant and those who are not pregnant, rather than between male and female. It is somewhat similar to an Army regulation requiring that enlisted men be shaved and not wear beards or mustaches. Such a regulation discriminates between one class of men and another class of men, and not as between men and women.

At the top of this typewritten memo, Blackmun added a handwritten note: “Not sex related.” He eventually joined a majority opinion that invalidated the mandatory leave policies on the basis of due process. The word “discrimination” did not appear in Potter Stewart’s majority opinion in Cleveland Board of Education v. LaFleur. So Blackmun did have far to go, but so did the court. Blackmun did not instinctively grasp what the young Ruth Bader Ginsburg was trying to convey to the court during her carefully constructed strategic litigation campaign of the 1970’s. But neither did he close his eyes and turn away from it, even when his law clerks advised him to. During this period, the court was gradually constructing a language and jurisprudence of women’s rights. Blackmun was not a leader. But it’s fairly clear that the more entrenched he became in his defense of Roe, the more receptive he became to the claims of women’s equality. By 1986, in his opinion in the Thornburgh case, we see a description of what it means to a woman to have the right to decide whether to terminate a pregnancy, a description very different in tone from the doctor-centered language of Roe: “Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy . . .”

Toward the end of his career, Blackmun would occasionally deny that he had changed very much, but the statistics tell the story. In closely divided cases, he voted with Burger 87.5 percent of the time during his first five terms and with Brennan only 13 percent. During the next five years, 1975-1980, he voted with Brennan 54.5 percent of the time and Burger 45.5 percent. During the final five years that Blackmun and Burger served together, 1981-1986, Blackmun joined Brennan in 70.6 percent of the divided cases and Burger in only 32.4 percent.

What types of justices are open to change, and which are not? Can we draw conclusions from our recent and not so recent experience as we wait for the new Roberts Court to reveal itself?

This is clearly a perilous enterprise. But one observation that comes to mind has to do with a new justice’s stance toward the received body of law of which he or she is now a guardian. Although Blackmun developed a sense of mission, and was propelled by it in the way I have just described, it’s important to note that he did not arrive at the court with any agenda at all (beyond survival, which early in his tenure, he doubted.) Neither did Justice O’Connor, who knew she faced a steep learning curve in making the transition from the Arizona Court of Appeals and her earlier career in elective politics.

Both Blackmun and O’Connor experienced the personal disruption of a midlife move to a distant city and culture with which they were almost entirely unfamiliar. This mind-bending experience, and their lack of a personal agenda, left each of these justices open to new and unexpected influences, in a way that Clarence Thomas has not been. The world of Clarence Thomas, a product of bureaucratic Washington by the time he was named to the court at the age of 43, has become more insular and self-reinforcing, while the worlds of Harry Blackmun and Sandra O’Connor became ever more open.

For 17 summers, Blackmun left Washington for the Aspen Institute, where he would conduct a seminar in which people from around the country and the world would wrestle with age-old debates about justice and society. Justice O’Connor traveled widely, interacting with judges of other constitutional courts and spending many hours working with the American Bar Association’s project on the rule of law in eastern Europe. She became a champion of the idea that American courts would benefit from acknowledging legal developments in the rest of the world.

Among the current justices, John Paul Stevens is one whose views have changed quite noticeably during the 31 years since President Gerald Ford named him, a solid Midwestern Republican, to the court. It is not only the case that the court has become more conservative during those decades, as of course it has. Justice Stevens has become the court’s most liberal justice not only by default, but by changing his views on such issues as affirmative action and capital punishment. Last fall, he gave a most interesting speech at Fordham University Law School in which he described the process of approaching a case with one mindset, only to work through the case and come to a different conclusion. “Learning on the job is essential to the process of judging,” Justice Stevens said. “At the very least, I know that learning on the bench has been one of the most important and rewarding aspects of my own experience.”

Our new chief justice, John Roberts, does not face a notably steep learning curve. Few people have come to the court as familiar with the institution and the docket. Between his service as a government lawyer and his distinguished career in private practice before the court, there are few issues he has not confronted. He did not even have to go through the challenging experience of a mid-life move to a distant city. In moving from one courthouse to another, his daily commute from his close-in Maryland suburb got about six blocks longer. The forces for change that confronted Blackmun and O’Connor may be absent. David Strauss of the University of Chicago, for one, wrote last summer after Roberts was nominated that “whatever his views are now, the Senate, and the American people, should count on his being the same person throughout the 30 or so years he is likely to spend on the court if he is confirmed.” I think that’s a little categorical, but it’s not completely unfounded. Samuel Alito, too, spent a formative period of his early legal career in Washington, although his 15 years as a federal appeals court judge were spent in New Jersey. The discourse of the court is certainly familiar to him.

Are either of these new justices on a mission, in service of a personal agenda to remake constitutional law? Others may disagree, but that’s not the impression I have. Rather, I see insiders, comfortable with the status quo that has brought them success and professional fulfillment. I don’t sense the anger and axe-grinding of a Thomas or Scalia. Or, to go back just a bit further, I don’t see a Warren Burger, who had been at war with the liberals on the D. C. Circuit while he served there, and approached the chief justiceship girded for continued battle and seeing enemies all around him, as his correspondence at the time with his friend Harry Blackmun makes dramatically evident. Nor do I see a young William Rehnquist, who emerged from a Supreme Court clerkship and lived through the 1950’s and 1960’s deeply persuaded that constitutional law was on the wrong course and needed to be wrenched back.

I recently read an interesting new book by William Chafe, a historian and former dean of the faculty at Duke, called Private Lives, Public Consequences: Personality and Politics in Modern America. The book presents portraits of national leaders from FDR to Clinton and tries to identify the connection between the personal and the political. Most of these individuals endured some crisis that had the result of causing or forcing them to see things in a new way. For Blackmun, I think it was the trauma of his early years at the court, a period that included Roe v. Wade and its aftermath. I’m not aware of a crisis in the lives of John Roberts or Sam Alito that would have shattered their received notions of how the world works.

History offers no guarantee, but the court’s very recent history does offer a cautionary tale for those tempted to jump to quick conclusions about what lies ahead, especially when we are considering the future tenure of relatively young men who are likely to be on the court when my 20-year-old daughter is approaching middle age. We thought we knew William Rehnquist pretty well by the time he approached his third decade on the court. So who would have imagined that it would have been Rehnquist, at war with the Miranda doctrine for much of his judicial career, who on a June morning six years ago would announce the court’s judgment in Dickerson v. United States, reaffirming the Miranda decision and describing it as “part of our national culture.”

And I was equally surprised four years later to hear Chief Justice Rehnquist announce the court’s judgment in Locke v. Davey, rejecting the argument that a state that provided financial aid at the college level to needy and deserving students had to provide the same basis of support for students studying for the ministry. This underestimated decision put the brakes on the school voucher movement, of which the chief justice was the doctrinal godfather in a series of Establishment Clause rulings going back to Mueller v. Allen, a Minnesota case decided 20 years earlier, and continuing through the Ohio school voucher case, Zelman v. Simmons-Harris, in 2002.

And how about the chief justice’s opinion for the court in the 2003
Family and Medical Leave Act case, Nevada Department of Human Resources v. Hibbs, in which the court rejected the state’s claim of 11^th amendment immunity from suit after having accepted such claims in a series of cases involving similar statutes.

The William Rehnquist of the final years of his tenure, in other words, was not necessarily the justice we thought we knew from the beginning, middle, or even late middle of his career. The question is, what happened? I don’t think Rehnquist changed his views in any fundamental way; in fact, I don’t think he changed his views about anything that was really important to him during his adult lifetime. What I think acquired, however, was a different perspective, one that included not only his personal agenda but the long-term institutional interests of the Supreme Court. He was a very smart man whose effectiveness derived in no small part from his ability to see around corners, and in the cases I have mentioned, that kind of vision told him that it was time to hold back – to mix metaphors, that it was not the time to follow the logical implications of the court’s recent precedents right off a cliff. The last few years of the Rehnquist Court provide us with a case study in the impact of the institutional on the personal. It’s worth noting, of course, that John Roberts clerked for Rehnquist, and that Rehnquist remained his mentor. It’s also worth observing of another chief justice, Earl Warren, that his first term was a very poor predictor of the kind of justice that he would become. During his first term on the court, 1953, he voted against criminal defendants and civil rights litigants 62 percent of the time. But over the course of the next 15 years, he sided with the civil rights/ civil liberties position in more than 80 percent of the cases.

So we’ve come to a fascinating moment in the life of an institution hardly immune to change, and yet anchored in a deep appreciation of the role of precedent, populated by individuals with varying ideas of what’s best for the court and the country and of how to use the great power at their command to best accomplish their goals. I can’t think of a better time to have a ringside seat at the court. I know I’ve presented more questions than answers, and I await the answers with you, eagerly.