Supreme Court "Divided by Political Differences"

From Dupont Circle Village Newsletter, February 2016

Soup Salon guest Kenneth Jost (bottom right in photo) has been a legal journalist for three decades. Make that more than 50 years, if you count his high-school newspaper article on desegregation. Ken started his career at the Nashville Tennessean and got on the court beat a year later. Aside from a stint working as a legislative assistant for the then first-term Representative Al Gore, his friend from Harvard, he never turned his back on legal journalism. In DC, this began with Congressional Quarterly (CQ), which also published an annual book, The Supreme Court Yearbook, reporting on all the Supreme Court decisions of the year. Ken became its author at the same time that Ruth Bader Ginsburg joined the Court. He was also a writer and editor for CQ Press and CQ Researcher, as well as president of the DC chapter of the National Lesbian and Gay Journalists Association. His most recent book is Trending Toward #Justice, a compilation of his key columns and the backbone of his Salon talk.

“The conflicts of the early 21st century are coming before a Court more neatly divided by political differences than ever before,” Ken observed. He related this observation to why Justice Anthony Kennedy, who he termed “the bipartisan Justice” and “very earnest,” is so often the Court’s swing vote. Conservative as he is, Kennedy couldn’t have been confirmed without Democrats when President Nixon nominated him after the Bork debacle; indeed, he has proven less “fervently ideological” than his Republican peers on the Court. Still, he added, “this is a Court of judicial activism, whose majority is asserting a conservative politics more strenuously than is typical.”

Ken pithily summarized his book’s profiles of the other eight Justices.

• Roberts: “A nice guy” and also a “determined conservative.” “He’s responsible for the institutional credibility of the Court, which tempers him in some instances.”

• Scalia: “The Justice with an injudicious temperament...and more certitude than a Justice should have.”

• Thomas: “During his confirmation, he said he had no interest in overturning precedent, but that’s all he does.”

• Alito: “Overly dogmatic...but very effective at shaping arguments to go his way.”

• Ginsburg: “Even apart from the Court, she’d be in a legal hall of fame.” Ken added that he nonetheless believed she should have retired a few years ago, which prompted a lively discussion during the Q & A.

• Breyer: “He was once described as a ‘cold fish,’ and I agree.”

• Sotomayor: “Whatever her judicial legacy will be, she has charted a new path as a Justice of the people.”

• Kagan: Like Alito, she is “very effective at framing questions and arguments to her side.”

The book also features the history of some cases, criminal justice and equal representation issues, and how “things went awry with President Bush’s policies during the war on terror in trying to keep issues out of court.” On equal representation, especially for poor people, Ken also traces how the Court is narrowing remedies for injured parties.

The three pieces in the book Ken termed “the most meaningful” to him are tributes to his late, former publisher at the Nashville Tennessean, who sent him to jail, undercover, to report on conditions there; to the late Anthony Lewis, who inspired him to take up legal journalism and whom he hailed as the “creator of the modern Supreme Court beat;” and to the late Nelson Mandela— “an example of the powerful role law can play in promoting liberty and justice for all.”

Ken believes that the law has played that role here, as well. “Though there are big exceptions, on balance we have a freer and more just legal system because of the Supreme Court than we otherwise would.” Villagers can keep up with his astute views through his blog, Jost on Justice.”