Identity Politics on the Supreme Court
Responding to early 19th-century rumors that they drank excessively, the Supreme Court justices decided to drink nothing on conference days — unless it was raining. At the next conference, Chief Justice John Marshall asked Joseph Story to scan the sky for signs of rain. When Story said he saw none, Marshall said: “Our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere — let us refresh ourselves.”
Americans have argued about the court’s jurisdiction forever. They should not stop, especially now that the president has nominated U.S. Appeals Court Judge Sonia Sotomayor.
The 1987 fight over President Reagan’s nomination of Robert Bork interred the tradition that the Senate, in evaluating judicial nominees, would not delve deeply into the nominee’s jurisprudential thinking. Bork’s defeat was unjust, but the new approach to confirmations was overdue, given the court’s increasingly central role in American governance.
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