The Supreme Court's Urban Tilt

 

 President Obama has now nominated two women to serve on the U.S. Supreme Court – and the addition of Sonia Sotomayor and Elena Kagan -- nominated Monday and almost sure to be confirmed -- will definitely give the court a new tilt. But the tilt isn’t about gender. It’s about geography. In Sotomayor and Kagan, Obama has selected two women who have lived their whole lives in big cities – they’re both from New York, though from very different backgrounds (Sotomayor’s from the Bronx).

And that means they are likely to give the Supreme Court an urban spin that it hasn’t seen since the Roosevelt/Kennedy/Johnson era, when the court included urban veterans like Felix Frankfurter (who grew up on the Lower East Side in New York) and Thurgood Marshall (from Baltimore). Even Kagan’s predecessor, John Paul Stevens, who was from Chicago, wasn’t this gritty; after all, he always wore bow ties.

Other than Princeton, where they both went to college (though at different times, as did First Lady Michelle Obama), Sotomayor and Kagan have never lived outside big cities. Sotomayor lived her entire life in New York City until she took her seat on the Supreme Court last fall. Kagan’s life has consisted of Manhattan, Cambridge (just outside Boston), Chicago (where she taught law school with Obama), and Washington, D.C.

Indeed, all three women on the Supreme Court are New York urbanites, including Ruth Bader Ginsburg, who grew up in Brooklyn and subsequently taught at Columbia University in Manhattan.

How will the urban spin affect a court that is already deeply divided over major social and cultural issues? Though it isn’t often discussed, there has always been tension between urban ideas and suburban/small-town/rural ideas on the Supreme Court.

In the land use arena, the victory for planning in the seminal case of Euclid v. Ambler in 1926, which upheld the constitutionality of zoning, was largely the result of the fear that affluent justices from small towns had about urban immigrant populations. "The constantly increasing density of our urban populations, the multiplying forms of industry and the growing complexity of our civilization make it necessary for the State, either directly or through some public agency by its sanction, to limit individual activities to a greater extent than formerly," wrote Justice George Sutherland for a very conservative, business-oriented court.

An urban tilt might affect a number of divisive issues – such as gun rights, which often reflect differences in urban and rural viewpoints. However, it might also tilt land use issues toward government involvement and away from property rights, as urbanites – living in a more crowded and complicated world – tend to accept more regulation than suburbanites and rural dwellers.

Of course, Kagan’s confirmation wouldn’t change the delicate balance of power on the court. The scales are generally still tipped by which way Justice Anthony Kennedy swings in any given case. And Kennedy’s not from Manhattan, the Bronx, or Brooklyn. He’s from Sacramento.