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The Future Supreme Court

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By Richard Stern

I enjoyed Cass Sunstein's recent speculations on the possible transition from the present conservative (rather than centrist) Roberts-led court to a liberal one of the sort over which Chief Justice Warren presided.

My interest in court matter was ignited sixty-seven years ago when I read Drew Pearson and Robert S. Allen's The Nine Old Men and wrote in my Hunter College Model School yearbook that I wanted to be a Supreme Court justice. The chief redeemers of that beknighted court, Brandeis and Cardoza, were Jews, as high as such people as I could go in that era. I still remember some of the names and faces of the backward justices, McReynolds, Van Deventer, Pierce Butler, who so irked my beloved FDR that he suggested appointing one justice for every septuagenarian and older one.

Although my ambition altered from law to literature a year or so later, I've never ceased being absorbed by the justices and their decisions. Yet, although for some years I used to go to Washington DC twice a year to visit a daughter and her family, I never saw anything but the exterior of the classical court building and until a few years ago, never spoke with a justice.

The justice was David Souter and the occasion was the memorial service for Gerald Gunther, the great constitutional scholar whose biography of Judge Learned Hand had, he said, guided Justice Souter's judicial thinking. This was the substance of his eulogy; mine was more personal. I had known Gunther at Stuyvesant High School as Gunther Gutenstein and had not heard of, let alone from him, till 1973 when he wrote me from Cambridge, MA that he'd just read a novel of mine set there and found a handful of mistakes which he was good enough to correct in case there was a later edition. After this, he "came clean," and said he wrote in this corrective way because he remembered that I'd been chairman of the Arista Committee which, back in 1944, had interviewed him for membership. I'd asked him to differentiate the work of Henry, William and Harry James.

He wrote that he knew only the famous trumpeter married then to the WW II "pin-up" Betty Grable and that even now, decades later, he was embarrassed by his ignorance.

My friend Philip Kurland informed me who Gunther was and I then began noticing quotes from him in the Times, Time and The New Republic, but we didn't become reacquainted and then close friends till I went to the Center for Advanced Studies in the Behavioral Sciences in Stanford in 1999.

Justice Souter and I talked briefly after the last eulogy was delivered and then a bit more after dinner at the beautiful Gunther house that evening. What I most vividly remember was his reply to my wondering if he saw any augmentation of his side (Breyer, Stephens and Ginsberg--another eulogist of Gunther, her mentor) coming along. He said he did and then amazed me and everyone to whom I recounted what he said, by saying "Clarence Thomas."

The answer made me think of the court in a different way. I now envisaged a small group of intimate colleagues who exchanged and shared much more than legal opinions. Thomas and Souter had clearly had talks of a different sort than most of us imagined. That Thomas could be charming I knew after hearing him speak at a library here in Savannah which as a boy had helped him leap over the terrible obstacles Afro-American boys and girls faced as they dreamed beyond the provincial aridity of the lives of those around them.

However, to extrapolate charm into legal opinion was something Souter, not I or such legal friends as Gerhard Casper or Richard Posner, could do. After all, one saw the uncrossable gulf in the close friendship of Justices Ginsberg and Scalia, whose families spent every New Year's Eve together but who in crucial opinions almost always voted on opposite sides.

So I enjoyed Cass Sunstein's well-rooted imagination of another liberal court but retain Hamlet's caution to Laertes that there were more things in Supreme Court matters than there are in even Justice Souter's optimism.

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