Shifting Around on the Supreme Court
In an interesting article in the Washington Post, Lee Epstein (law and political science, Washington University) and Jeffrey Segal (political science, Stony Brook) write that a judge’s past judicial record is not necessarily a good indication of how they’ll decide cases as a Supreme Court justice. They observe:
In the case of Souter, initial judgments about how he might vote were downright wrong. The clear expectation, based largely on his lower court record, was that Souter would be a rather consistent conservative voter — even more to the right than Reagan appointees Kennedy and O’Connor, at the time of their nominations. Souter, of course, is a rather consistent voter — on the court’s liberal wing.
In retrospect, we probably should not be surprised by this turn of events. Lower court records can actually provide disinformation about a nominee’s true preferences. Judges on lower courts, after all, are bound by Supreme Court precedent, and that constraint may explain why Souter — thought to be moderately conservative as a state and federal appellate court judge — emerged as liberal once on the high court. . . . While Supreme Court nominees “respect” precedent, as they unfailingly tell the Senate Judiciary Committee, once elevated they are not compelled to follow it. Freed from that constraint, the “real” Souter came into view.
I previously blogged here about how a judge might change when no longer strictly bound by Supreme Court precedent.
Epstein and Segal also explain that focusing on a nominee’s views on the burning issues of the day may not help us in understanding where the nominee will come out on the issues of tomorrow:
As the years wear on, new issues will test the strength and breadth of those commitments. When President Ronald Reagan appointed Anthony Kennedy in 1987, criminal law was a far more salient political matter to the president than, say, gay rights. Nonetheless, it was Kennedy who (16 years later) wrote the opinion striking down a Texas law that prohibited same-sex sodomy — an opinion that belied his generally moderately conservative approach to judging, not to mention one that the very conservative Reagan would likely have condemned. We might make educated guesses as to Alito’s views on abortion and states’ rights, but what about genetic fingerprinting and stem cell research?
Epstein and Segal also point out that the passage of time can lead to a judge shifting his or her judicial leanings:
The passage of time also enables even hard-core liberals or conservatives to rethink their jurisprudence. Witness Harry Blackmun, who served from 1970 to 1994. Early in his tenure, he joined the other three conservative appointees of President Richard Nixon to uphold the death penalty. But just before he retired, Blackmun declared that “no sentence of death may be constitutionally imposed” and that “from this day forward” he “no longer shall tinker with the machinery of death.” John Paul Stevens, too, has become increasingly liberal with each passing administration, while Byron White (who served from 1962 to 1993) became more and more conservative.
In addition to these factors, Epstein and Segal note another factor that can lead to a shift in a justice’s positions — the internal dynamics of the Court:
Then there is the matter of internal dynamics on the court. Despite the size of its building, the court is a small office — with all the attendant politics of a small office. If we believe that most members of this office, the justices, hope to move the law in ways that reflect their own ideological commitments, then they engage in ideological fanaticism to their own peril. To produce a decision with the force of precedent, a majority must subscribe to the opinion’s rationale. Unless five of the justices are quite conservative or quite liberal, extremism can cost votes, depriving the opinion author of a majority. . . .
Extremist justices can miss opportunities to pull the law toward their preferences in more subtle ways as well. By custom, the senior justice voting with the majority (or the chief justice, if he is part of the majority) is responsible for choosing someone to write the majority opinion. In closely divided cases, the justice assigning the opinion may be less inclined to ask an extremist to write out of fear that his or her majority may dwindle to a minority. This may well explain why Stevens assigned the Michigan law school case to the most moderate (and fragile) member of the majority, O’Connor, and not to the far more liberal Ginsburg. It also may explain why O’Connor has seemingly relished and indeed maintained her place as a key player on the court. Like Lewis Powell before her, she seemed to recognize that moderation — perhaps even modulation — can work to the advantage of a policy-minded justice.