Choose Your Own Supreme Court Justice
Out of our Top 21, whom do you like best?
Posted Monday, April 12, 2010, at 5:01 PM
Don't let the blond chignon fool you: Wardlaw is the first Latina to serve on a federal appeals court. She is truly of mixed heritage—in this 2009 interview, she writes, "My mother was Mexican, Catholic, and Republican, while my father was a Scottish-Irish Presbyterian and a loyal Democrat." She also says: "Women can have it all, but not all at the same time. … The real life consequences of my desire to make partner as a litigator in an international law firm were that I did not marry until I was 30; did not have my first child until I was 35; and found myself at age 41 with a six-month-old infant daughter starting a job as a U.S. District Court Judge."
Notable cases: Wardlaw wrote the 9th Circuit opinion, which the Supreme Court largely concurred with on appeal, which found a violation of the Fourth Amendment in an Arizona school's strip-search of a 13-year-old girl wrongly suspected of hiding prescription-strength ibuprofen in her underwear. Wardlaw wrote that "a reasonable school official, seeking to protect the students in his charge, does not subject a 13-year-old girl to a traumatic search to 'protect' her from the danger of Advil."
In 2008, Wardlaw wrote the first appellate opinion giving Fourth Amendment protection to e-mail messages, in a case brought by government workers whose bosses wanted to search their e-mail accounts. The Electronic Frontier Foundation called the ruling "a tremendous victory for your online privacy." In another case on appeal to the Supreme Court this term, Wardlaw ruled that AT&T must give women who retired from the company credit, in calculating pension benefits, for work time lost decades ago for maternity leave. (The Supreme Court disagreed.) And in a 2004 ruling affirmed by the Supreme Court, Wardlaw strengthened the hand of the Environmental Protection Agency in enforcing the Clean Air Act, in a case about whether the EPA could stop a new pollution-spewing mine over the objections of the state of Alaska.
Pam Karlan, 50, teaches law at Stanford University. As founding director of the school's Supreme Court Litigation Clinic, she has helped represent dozens of defendants in criminal and civil rights matters, all free of charge. An expert on constitutional and election law, Karlan has served as assistant counsel at the NAACP Legal Defense and Educational Fund. Karlan has authored three leading casebooks on constitutional law (one of which Obama taught from) and is co-author of Keeping Faith With the Constitution, which offers a progressive theory of jurisprudential interpretation. Karlan confirmed to Politico that she is "counted among the LGBT crowd." Karlan, whose legal writing is both trenchant and prolific, has become something of a rock star on the legal-conference circuit.
Karlan has no judicial record to probe, but she has an immense collection of writings. She argued at the Supreme Court in defense of the Voting Rights Act and wrote an amicus brief on behalf of legal academics in the 2003 case Lawrence v. Texas, arguing that laws against consensual sodomy were unconstitutional. She has defended criminal defendants in police search cases at the high court and has been a strong advocate for gay marriage. (Disclosure: Karlan is an acquaintance of Dahlia Lithwick's.)
Merrick Garland, 57, has something in common with four of the current Supreme Court justices: Like Roberts, Thomas, Scalia, and Ginsburg, he comes from the D.C. Circuit Court of Appeals, which, as the National Law Journal notes, is considered the second-most important court and a breeding ground for Supreme Court justices. After he graduated from Harvard Law School, Garland clerked for Justice William Brennan Jr., worked for Jimmy Carter's Justice Department, spent time in private practice and as a federal prosecutor, and returned to the DoJ under Clinton, where he oversaw the investigation of the Oklahoma City bombings and prosecuted the Unabomber. For this Supreme Court nomination, he bears the obvious liability of being a white male at a time when Obama is facing pressure on many fronts to nominate someone who has at most one of those traits.
Garland is usually described as a moderate liberal, engaging on the bench and getting along with conservative colleagues on the D.C. Circuit. He has a background in both antitrust and administrative law as well.
Notable cases: In June 2008, Garland wrote the D.C. Circuit Court's decision that Guantanamo detainee Huzaifa Parhat was unfairly classified as an enemy combatant. When Roberts still sat on the D.C. Circuit, he and Garland concurred on an opinion that granted a former D.C. Metro employee the right to sue for disability discrimination. Unlike Roberts, he voted not to rehear a case against a California developer who was challenging the Endangered Species Act over a dispute with the Arroyo toad, and he has generally sided with environmentalists.
Kathleen Sullivan, 54, is the former dean of Stanford Law School, teaches constitutional law there, and has authored the nation's leading constitutional law casebook. She is chair of the National Appellate Practice at Quinn Emanuel Urquhart & Sullivan, which recently added her name to its billing. A one-time Marshall scholar, Sullivan's constitutional knowledge is prodigious. Her former law professor Laurence Tribe once called Sullivan "the most extraordinary student I had ever had." The National Law Journal has twice named her one of the "100 Most Influential Lawyers in America" and has twice named her as one of the "50 Most Influential Women Lawyers in America." Last time around, Politico reported that she was a lesbian; she did not comment. Sullivan is a gifted oral advocate and has argued five cases at the Supreme Court, notably several important business cases in recent years, including an appeal representing wineries challenging bans on the direct shipment of wine to consumers living out of state. She was also a member of the legal team that challenged the McCain-Feingold campaign finance law. Sullivan has filed amicus briefs in two seminal gay rights cases at the Supreme Court, Lawrence v. Texas and Bowers v. Hardwick, and authored an amicus brief in a case involving the constitutionality of gay marriage in California. She is also well-known for her pro bono work in high-profile cases involving civil rights and civil liberties. In a brief she co-authored in a landmark case about warrantless NSA wiretapping, she wrote, "Whatever inherent powers the President might have under Article II, they do not include the power to conduct a warrantless domestic surveillance campaign, of indefinite duration and unlimited scope, where a duly enacted statute expressly prohibits such conduct." (Disclosure: Sullivan was a professor of Dahlia Lithwick's at law school.)
Margaret McKeown, 58, was the first woman partner at the Seattle law firm Perkins Coie, where her 23-year practice concentrated on antitrust and intellectual property law and her clients included Boeing and Citicorp. Bill Clinton nominated her to the 9th Circuit in 1996. After Republicans refused to bring the nomination to a vote, Clinton had to nominate her again in 1997. In the end, she was confirmed by a wide margin of 80-11.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at email@example.com or on Facebook or Twitter.
Dahlia Lithwick writes about the courts and the law for Slate.
Chris Wilson is a Slate contributor.