The Clinton Court

A different kind of legacy

By Jeff Bleich, Kelly Klaus and Deborah Pearlstein

It's customary to refer to periods in Supreme Court history by the tenure of a particular chief justice - e.g., the 'Marshall Court,' the 'Warren Court,' or in our present time, the 'Rehnquist Court' - but some periods of Court history are more influenced by the nation's chief executive than by its chief judicial officer. For example, Harlan Fiske Stone may have run an efficient operation, but the Court of the 1940s was very much President Franklin Roosevelt's. Roosevelt's appointees dominated the Court - both numerically and ideologically - when they sustained the New Deal against constitutional attack. In the process, the 'Roosevelt Court' redefined the federal-state balance of power and moved the focus of judicial scrutiny from business regulation to restrictions on civil liberties.

The Roosevelt Court, however, is just one model of presidential influence over the Supreme Court. Through the number and type of appointments a president makes, he can alter the Court's philosophical bent and cast a shadow over the law long after leaving the White House. Our most recent past president, Bill Clinton, however, leaves a different type of Court legacy. Clinton appointed only two justices in nine years, and it is doubtful that either of them will lead a judicial revolution in the way that Hugo Black did for Roosevelt, or William Rehnquist did for Richard Nixon and Ronald Reagan. On the other hand, Clinton's actions led to landmark Court decisions in the field of separation of powers and ultimately to legislation that reshaped the Court's death penalty jurisprudence. Although retrospectives on the Rehnquist Court will no doubt follow the current chief justice's eventual departure, now seems an appropriate time to examine the legacy of the 'Clinton Court.'

A president's ability to influence the Court's direction through appointments can be based on sheer numbers, the qualities of the particular justices, or some combination of the two. Appointments may change the number of votes supporting a specific position - as was the case when conservative Clarence Thomas was picked to replace the liberal Thurgood Marshall - or may change the Court's approach to issues altogether - as with Rehnquist's emphasis on issues of federalism starting in the 1970s.

In terms of the number of justices he appointed or their net effect on the Court's ideology, Clinton had at most a modest impact. His yield of two appointments - Ruth Bader Ginsburg and Stephen Breyer - was low for a two-term president. Reagan appointed a net three, and also elevated Rehnquist to the chief's spot; Nixon and Eisenhower had four apiece; and Roosevelt made a whopping nine appointments to the Court. Although one Clinton appointee replaced a comparatively more conservative justice (Ginsburg for Byron White, a moderate conservative appointed by John Kennedy), the Court's overall bent remains the conservative one of its majority Reagan and Bush appointees.

Justices' qualities, however, often matter as much (if not more so) than their quantities. Two of Eisenhower's picks - Earl Warren and William Brennan - helped to dramatically reshape the Court's jurisprudence, much to Eisenhower's later chagrin. Likewise, two Reagan appointees - O'Connor and Kennedy - have staked out moderate conservative positions on a number of key issues, including abortion and free speech.

Clinton's picks reflect an almost militant aversion to ideology. Ginsburg and Breyer spent their prior lives as scholars and judges, unmarked by strong ideological perspectives. Each had a lengthy tenure at the court of appeals level and had developed a record of moderate opinions and resistance to dogmatic positions. For the most part, their jurisprudential 'passions' could not have been more far removed from radical change in the law. Ginsburg, while famous for her role as an advocate for gender equality in the early 1970s, had an academic career that focused mainly on federal jurisdiction and procedure; Breyer was an administrative law maven. Although early on in his administration, Clinton suggested he favored appointing national political figures to the bench - the names of Mario Cuomo and Bruce Babbitt emerged when vacancies arose - the Ginsburg and Breyer appointments ultimately appeared to reflect Clinton's preference for case-by-case judging. Ginsburg and Breyer were admired for moving between liberal and conservative philosophies as pragmatism required. If they were seen as potential 'path breakers,' this was based not on ideology but on the diversity they brought to the bench. Ginsburg was only the second woman to sit on the Court, and the two Clinton picks were the first Jewish justices to serve in 30 years.

To the extent he aimed to tone down the degree of ideological commitment on the Court, Clinton has enjoyed the rare triumph of selecting nominees who have behaved on the Court as he originally hoped. Ginsburg and Breyer both have developed reputations on the Court as legal technocrats: They write carefully and precisely, take positions that often are more moderate than liberal, and (apart from the hot-button issues) are as likely as not to join in the opinions of their more conservative colleagues.

There are differences, though, between the two appointees. Ginsburg quickly filled the role of the meticulous and restrained legal technician. She is a stickler for procedure and has written a disproportionate share of the Court's opinions defining how litigants may proceed with their lawsuits rather than what substantive principles will govern their rights. One of Ginsburg's most famous opinions for the Court, Arizonans for Official English v. Arizona (1997), dismissed as moot a challenge to a so-called 'English only' law for state employment because the person challenging the statute found a private-sector job while the case was on appeal. Ginsburg counseled that before reaching the merits in any case, courts should scrupulously inquire, 'Is this dispute really necessary?'

To her admirers, Ginsburg exercises judicious self-restraint while carefully choosing the 'right' case, a quality characteristic of her earlier experiences litigating gender-rights cases. Detractors view her approach as too myopically focused on the specifics of each case and insufficiently concerned with legal substance or principled guidance for lower courts. Regardless of how one values her contributions, one of the key defining features of her tenure to date has been a reluctance to decide issues that are not essential to resolving the case.

Breyer, too, is a pragmatic justice, but unlike Ginsburg he gives every indication of being intensely interested in the merits of the substantive law. As an architect of deregulation efforts in the '70s, sentencing reform in the '80s, and the workings of the 1st Circuit (where he was chief judge) in the '90s, Breyer was famous for trying to make the law both more efficient and more comprehensible. Breyer's bent toward efficiency means that he frequently defers to agency expertise. For example, he argued last term for four dissenters that the FDA had the legal authority to regulate tobacco (FDA v. Brown & Williamson). Breyer's practical bent also leads him to favor common-sense, as opposed to mechanical, rules of criminal procedure. In last term's case on whether police searches of passenger luggage violated the Fourth Amendment, Bond v. United States, Breyer thought people concerned with privacy should buy hard-sided suitcases. On the other hand, his comments from the bench in this term's case from Oregon about thermal scans of individual homes, Kyllo v. United States, suggest that he thinks the police did violate the Fourth Amendment; expressing open skepticism of the state's argument that residents have no expectation of privacy in the heat they produce, Breyer wondered aloud how many people have access to thermal-scanning devices and whether the average person would be surprised to know he or she could be monitored that way. Breyer's relentless pragmatism was perhaps most clearly on display last term in his dissent in Apprendi v. New Jersey, which held that a jury had to decide any facts that could increase criminal sentences. Joined by three of his more conservative colleagues (Rehnquist, O'Connor and Kennedy), Breyer argued that even if history favored having a jury decide such issues, the majority's rule was impractical because it imposed enormous burdens on an already strained criminal sentencing system. In short, Breyer's pragmatism often defies political or ideological allegiances, as well as the gravitational pull of the Court's ideological poles.

Thus, although Clinton picked a pair of pragmatists, their individual and collective influence on the Court is likely to vary for years to come. For now, neither justice has moved the Court's jurisprudence dramatically from where it stood prior to Clinton's election. However, in the future, Breyer's inclination toward efficient rule-making - moving the Court to reach decisions and forging consensus where possible - may cause the Court to decide more hard cases and could position him as a major force in deciding these matters. Recently, for example, Breyer joined Souter in urging the Court to review California's 'three strikes' law in advance of a hard split of lower court decisions on the subject (Durden v. California). Ginsburg, by contrast, likely will continue to favor the passive virtues of denying review and - when pressed to reach the merits - writing decisions that are narrowly drawn. Over the long run, Breyer's pragmatism seems more likely to produce some dynamic future movement in the Court, whereas Ginsburg's may slow down (or isolate her from) any significant shifts in jurisprudence.

Although he did not add a substantial number of justices, Clinton did manage to distinguish himself at the Court in another way: by adding a substantial number of separation-of-power cases to the U.S. Reports. During Clinton's watch, the Court addressed a large number of matters relating to presidential power - rivaled only by the New Deal and Watergate eras. The Court's frequent forays into this sensitive area not only had a profound effect on Clinton's own presidency but have dramatically changed the landscape of executive privilege and power.

Clinton was the first president to get the line-item veto power from Congress, and thus the first president to defend that authority against constitutional challenge. The Court's decision in Clinton v. City of New York (1998), invalidated the line-item veto as an unconstitutional violation of separation-of-powers principles. Clinton had excised two portions of a massive appropriations bill: one forced New York to refund certain Medicaid payments back to the federal government, and the other eliminated a tax benefit for purchasers of food from farmers' cooperatives. In holding the line-item veto unconstitutional, the Court found that constitutional veto power required that the president accept or return entire bills passed by Congress.

While Clinton v. City of New York was a defining case for the presidency as an institution, Bill Clinton-the-litigant's lasting contributions to jurisprudence stem from the cases arising out of his personal conflicts. In the Paula Jones case that ultimately became Clinton v. Jones (1997), Clinton asserted that while in office presidents should be free from having to defend against distracting civil litigation. In particular, he argued that having to respond to discovery in a sexual harassment case 'as well as the potential litigation that [this litigation] might spawn may impose an unacceptable burden on the president's time and energy, and thereby impair the effective performance of his office.' The Court's finding that 'it appears highly unlikely [this litigation] would occupy any substantial amount of petitioners' time' proved to be right: the litigation occupied all of the president's (and Congress's) time after allegations surfaced that Clinton perjured himself during his deposition in the Jones case.

As a result of the Clinton v. Jones decision and the expanded independent counsel investigation that followed, Clinton's disputes with the independent counsel forced other decisions that made the president even more vulnerable to suits. In a number of cases involving White House personnel ranging from legal counsel to secret service officers, the federal courts rejected efforts to limit the information that could be extracted from a sitting president. The Supreme Court in fact considered petitions for review of at least six cases involving assertions by the president or White House officials regarding executive privilege. Finally, the culmination of the independent counsel investigation was that Congress established new precedent regarding the charges that could constitute a 'high crime or misdemeanor' and the president was tried before the Senate and Chief Justice Rehnquist.

In the end, it is unclear whether Clinton's legal ordeal ultimately eroded presidential power or had the ironic effect of preserving it. Although Clinton lost several legal battles, he arguably won the war. After the bloodbath of litigation ended, Bill Clinton remained President Clinton, and Congress allowed his greatest institutional nemesis - the independent counsel statute - to die a quiet, unceremonious death. Although the Court established precedent allowing presidents to be sued in civil litigation (and rejected a number of privileges any president can raise in such litigation), Clinton v. Jones may be destined to be a precedent honored mostly in the breach. Many believe the aftermath of the Clinton v. Jones decision showed the Court to be naïve in expecting that aggressive court management alone could minimize the disruption of civil litigation on a sitting president's schedule; future courts may be much more reluctant to allow civil matters to proceed against a president while in office. Likewise, without an independent counsel, the situations in which a president may need to invoke litigation privileges may be substantially reduced.

Finally, a president pushes the Court and its jurisprudence through the laws he proposes and the positions his Justice Department advances in key litigation. While several trends relating to federalism emerged in the Court during Clinton's term - including state immunity from federal wage and discrimination suits, and limitations on Congress's use of the commerce clause power - Clinton most clearly fostered a new set of constitutional questions with his signing into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). With the stroke of his pen, Clinton initiated sweeping reforms in death penalty litigation, habeas corpus review and the right to judicial review.

Clinton signed AEDPA for what appear to be both practical and personal reasons. As a practical matter, missteps in the early Clinton administration caused the Democrats to lose control of Congress in 1994. This meant both that the Republicans had a majority to push through their habeas reform bill and that Clinton had an increased need to restore public support by outflanking the Republican leadership. As a personal matter, Clinton was apparently moved by the tragedy of the Oklahoma City bombing and thus made the political commitment to do something to prevent such attacks a personal pledge as well. And when Congress handed him AEDPA - all wrapped up with the anti-terrorism provisions he wanted and glowing with post-Oklahoma City fervor - he signed it. Clinton's tenure thus had the odd effect of finally ratifying sweeping changes in habeas/criminal procedure that a Court dominated by Reagan and Bush appointees had not succeeded in institutionalizing completely.

As AEDPA illustrates, much of the 'Clinton Court' legacy is a creature of Clinton's own commitment to compromise. Shying away from another potentially bruising battle over more ideological nominees, Clinton succeeded in appointing two moderate justices with widespread bipartisan support. Likewise, Clinton acquiesced in the abolition of the independent counsel law and the enactment of AEDPA - choices themselves made, it seems, to climb out of a political box. The Clinton years thus provided additional dimension to the popular adage that every political issue ultimately winds up in the Supreme Court. One way or another, the Court and its jurisprudence have been indelibly marked by the politics of the Clinton presidency. +


The authors are litigators at Munger, Tolles & Olson in San Francisco. Bleich clerked for Chief Justice Rehnquist in 1990 and teaches constitutional law at Boalt Hall. Klaus clerked for Justice Kennedy in 1995 and teaches judicial decision-making at Stanford. Deborah Pearlstein clerked for Justice Stevens in 1999. Bleich and Pearlstein both served in the Clinton administration.

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