A New York Bloc on the Supreme Court

Dean Treanor and Martin Flaherty in The New York Times, May 11, 2010

Media Source

By JAMES BARRON

The Supreme Court has some justices who are liberals and some who are conservatives. It has some who see themselves as strict constructionists and some who probably do not.

And then it has the justices who grew up riding the subway and the ones who grew up turning right on red.

It has the justice who was the treasurer of the Go-Getters Club at James Madison High School in Brooklyn. It has the justice who watched “Perry Mason” on television in a housing project in the Bronx and decided that the star defense lawyer was less important than the judge. It has the justice who took part in a junior military training program at Xavier High School in Manhattan and carried his rifle home on the train to Queens.

If the nomination of Elena Kagan to the Supreme Court is confirmed, she would join three others in a distinct bloc. For the first time in the court’s history, said William Treanor, the dean of Fordham Law School, it would have four justices who grew up in New York City.

The four are a portrait of the city, each carrying distinct New York traits to Washington. “Kagan is so Manhattan, Scalia is so Queens, Ginsburg is so Brooklyn and Sotomayor is so Bronx,” said Joan Biskupic, the author of a biography of Justice Antonin Scalia. “They adopted in their identities the whole New York sensibility.”

Only Staten Island — “the forgotten borough,” as a woman who answered the telephone in the borough president’s office described it on Tuesday — would be without a justice to call its own if the Senate confirms Ms. Kagan.

The first chief justice, John Jay, was a New Yorker. But Vincent M. Bonventre, a professor at Albany Law School, said that Jay considered the Supreme Court as a comedown after contributing to the Federalist Papers and serving as president of the Continental Congress.

“He left the Supreme Court because he didn’t think it was prestigious or important, and it wasn’t, back then,” Professor Bonventre said. Jay resigned as chief justice in mid-1795 to take a job that interested him: governor of New York.

Other notable justices spent all or part of their youth in the city, including Felix Frankfurter and Benjamin N. Cardozo. But if Ms. Kagan takes the seat being vacated by Justice John Paul Stevens, a Chicagoan, it will be an unusual moment for a city whose political influence has been slowly shrinking since the nation outgrew the original 13 colonies.

Now the Supreme Court stands to have as many justices from New York City as New York State’s highest court, the Court of Appeals. (The Supreme Court is larger, with nine justices to the Court of Appeals’ seven.)

Justice Scalia — like Justice Samuel A. Alito Jr. — was born in Trenton. But Justice Scalia’s family left for Queens when he was a young child, and he “defines himself as a man from Queens rather than a boy from Trenton,” Ms. Biskupic said.

“He loved that borough,” she said.

Justice Scalia grew up in Elmhurst, in what he once called “a really mishmash sort of a New York,” with Germans, Irish and Puerto Ricans. He went to Public School 13, where he got straight A’s, and Xavier, the Jesuit school in Manhattan, where he was first in his class and was in the military program.

He said he realized that New Yorkers were assertive when his high school band went to march in a parade in Washington.

“These people just stood there and looked at us, you know?” he told the CBS News program “60 Minutes” in 2008. “In New York, people say, ‘Hey, play something for us, you know? You bums, why don’t you play something?’ They were — they were alive, they were confrontational.”

Justice Sonia Sotomayor has described herself as a Nuyorican who grew up in the Bronxdale Houses and later in Co-op City, where the talk of the neighborhood was that her mother had bought an Encyclopaedia Britannica. She was the valedictorian of the class of 1972 at Cardinal Spellman High School and became a prosecutor in the Manhattan district attorney’s office after attending Princeton and law school at Yale.

One of her answers to a questionnaire from the Senate Judiciary Committee was a peephole into her New York background. Asked to list the 10 most significant cases she had handled, she mentioned one that involved a shooting in a housing project.

Justice Ruth Bader Ginsburg was born in the Flatbush section of Brooklyn; her father owned small clothing stores, and she was an editor of the newspaper at James Madison High School.

She went to Cornell as an undergraduate and to Harvard for law school. But she transferred to Columbia Law School after her husband got a job in New York. She made the law reviews at Harvard and Columbia and was the first woman to become a tenured law professor at Columbia.

And then there is Ms. Kagan, whose father was a community board leader on the Upper West Side and who attended the prestigious Hunter College High School, Princeton and Harvard Law, later becoming its dean.

“They would all say the identities forged in these various boroughs propelled them forward and contributed to how they see themselves and how others see them,” said Ms. Biskupic, the Scalia biographer. “I was interviewing Justice Alito about jumping in at oral argument when you’re a new justice and how do you get a word in edgewise. We were talking about the temperament of a Scalia and a Ginsburg, and he said, as somebody from Trenton, he knows how to mix it up with them.”

Three of the four New Yorkers — Justices Ginsburg and Sotomayor and Ms. Kagan, if she is confirmed — would form the court’s liberal wing with Justice Stephen G. Breyer. Professor Bonventre of Albany Law School said that the “ethnic-gender-religious composition of the liberals on the court” would underscore their differences with the conservative majority.

“For most New Yorkers, they will look at the liberal minority and say, ‘That’s us, that’s our America,’ ” Professor Bonventre said, “and so when the court renders liberal decisions and you have all of those four, the three women and the Jewish guy, it will make complete sense to New Yorkers, whereas for the South and the Bible Belt, people are going to say, ‘They don’t understand the rest of America.’ ”

But Martin Flaherty, a professor at Fordham Law School who knew Ms. Kagan when they were undergraduates at Princeton, said that being a judge from New York did not mean “everyone is going to be a liberal or a conservative.”

“Witness Scalia,” Mr. Flaherty said. “But there’s a certain toughness, mental toughness, to spending time in New York. That is true of all four New Yorkers. None of them is a pushover.”