Tuesday, July 24, 2007

Why Do Some Republican Supreme Court Justices "Evolve" While Others Don't?

My article, Does Federal Executive Branch Experience Explain Why Some Republican Supreme Court Justices "Evolve" and Others Don't?, is now available at the Harvard Law & Policy Review website. (The HLPR should not be confused with the Harvard Journal of Law & Public Policy. The HLPR is the house organ of the American Constitution Society, while the HJLPP performs the same function for the Federalist Society. The articles in the two journals respectively slant left and right, but they both are committed to professional norms of scholarship.)

Here is the opening of my article:

Why do some Republican Supreme Court Justices “evolve” over time, becoming more liberal than they were—or at least more liberal than they were thought likely to be—when they were appointed, while others prove to be every bit as conservative as expected? For nearly four decades, one single factor has proven an especially reliable predictor of whether a Republican nominee will be a steadfast conservative or evolve into a moderate or liberal: experience in the executive branch of the federal government. Those who lack such experience evolve; those who have had it do not.
. . . Since President Nixon took office in 1969, the Senate has confirmed twelve Supreme Court nominees of Republican Presidents. Of these, six have had no substantial federal executive branch experience: Blackmun, Powell, Stevens, O’Connor, Kennedy, and Souter. The six successful Republican nominees who have had substantial executive branch experience are Burger, Rehnquist, Scalia, Thomas, Roberts, and Alito. Although it is too soon to make firm judgments about the two most recent appointees, it is notable that every one of the Justices on the first list has been less conservative than every one on the second list. And preliminary evidence indicates that the pattern will also hold for Chief Justice Roberts and Justice Alito.
The bulk of the article goes about proving these points and offering a causal explanation: I hypothesize that Republican Presidents and their legal advisers have been using prior federal executive branch experience to sort true believers from moderates. Because of the long lead time for law review publications, when the article went to press, I did not yet have data for the full 2006-07 Term, but this last Term now dramatically confirms the pattern: as predicted, Roberts and Alito proved to be very reliable conservatives.

However, the most recent Term casts some doubt on my claim that during the period under study, every Justice with prior federal executive experience has been more conservative than every Justice without such experience. In particular, the recently completed Term casts doubt on the claim that Chief Justice Burger was more conservative than Justice Kennedy. After all, it was Chief Justice Burger's majority opinion in Swann v. Charlotte-Mecklenburg Bd. of Educ. that said: "School authorities . . . might well conclude . . . that, in order to prepare students to live in a pluralistic society, each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities." Justice Kennedy joined in part the opinion of Chief Justice Roberts striking down the efforts of Seattle and Louisville to do just that in the Parents Involved case. Moreover, Justice Kennedy voted with the conservatives in 13 of the 19 cases that split 5-4 along ideological lines (see chart on Scotusblog here). Thus, while Justice Kennedy is pretty clearly less conservative than Roberts, Scalia, Thomas, and Alito (as well as Rehnquist), it is not perfectly clear that he is less conservative than Burger was.

Like Kennedy, Burger voted for a right to abortion (in Roe), but later indicated that he thought the right narrower than his more liberal colleagues did (as indicated here). And as the dicta from Swann indicate, on race issues, Burger was arguably less conservative than Kennedy. In the other direction, Kennedy has been the Court's leader on gay rights, sweeping away Bowers v. Hardwick, including CJ Burger's (offensive) concurrence in that case. And Kennedy is a free speech liberal while Burger was not.

It's not entirely clear how one meaningfully measures whether, in the aggregate, Kennedy is more or less conservative than Burger was, but that's largely beside the point. At most this exercise shows that Burger is a possible counter-example to my thesis, but I do not claim in the Article to have discovered a law of nature, just a strong correlation in an admittedly small data set. And even then, I'm not willing to concede that Burger is a counter-example. Ideology, I think, needs to be measured in relative terms. On a Court that included William O. Douglas, William Brennan, and Thurgood Marshall---and on which Harry Blackmun and John Paul Stevens counted as moderates---Burger was very clearly conservative. Likewise, on the Rehnquist and Roberts Court, Kennedy is clearly a moderate/swing Justice.


Sobek said...

"And Kennedy is a free speech liberal while Burger was not."

Kennedy voted against the liberals in the two big speech cases this term.

Sherry F. Colb said...
This comment has been removed by the author.
Michael C. Dorf said...

In response to Sobek, in one of those cases, re campaign finance, being a "free speech liberal" means being a conservative, which is how Kennedy voted. In the other, Kennedy's longstanding views about the state's power over minors trumped his more general free speech libertarian views. Burger would have been with him there. More broadly (which is how I was speaking in the part of the post Sobek quotes) there is no doubt whatsoever that Kennedy is more liberal on free speech issues than Burger was.

Benjam said...

the article says you borrowed the segal and spaeth scoring system. are those the segal-cover scores? mershon & epstein (1996) have an important piece on the difficulty of using those scores for anything other than civil rights issues.

an interesting tension is the idea that a president wants to appoint younger justices in order to have a greater longitudinal impact on the court,s jurisprudence. at the same time, younger justices will be more likely to evolve. in other words, ted olsen isnt going to evolve, but the president doesnt want to appoint someone of his age.

your piece suggests that presidents are trying to eliminate that risk by appointing justices with whom they have greater ideological familiarity. it sounds very convincing, i must say. you could get a much larger data set if you applied the same test to circuit court appointees.

Sobek said...

"Kennedy's longstanding views about the state's power over minors trumped his more general free speech libertarian views."

I'm not sure that conclusion can be extrapolated from Kennedy's joinder of Alito's concurrence, which purported to limit the scope of the majority opinion.

As to the Wisconsin Right to Life case, the words "liberal" and "conservative" have little meaning in a case where Ginsberg, Souter and Breyer are viewed as the conservative wing.

As to your conclusion about Burger, I'm not qualified to opine, so I'll take your word for it. I'm not trying to torpedo your entire argument, just highlight two recent counter examples.

Sobek said...

"you could get a much larger data set if you applied the same test to circuit court appointees."

Maybe, but if scrutiny by the President and Congress decreases with the level of the court, then the data become increasingly unreliable the further down you go.

My understanding is that in Nevada, Harry Reid and John Ensign have a deal that Reid gets to recommend one federal judge for every three judges recommended by Ensign. If that is the case, then I suspect the nominations have little to no reflection on the President's preferences.

PG said...

Perhaps on free speech, instead of asking whether Kennedy voted with "the liberals" on the court, ask whether he voted with the ACLU. On Wisconsin Right-to-Life, he did.

I realize that we got only the abstract of the article, so I wonder if you also use the liberal-conservative metric for those with executive branch service based on whose executive branch they served. Burger, after all, was Eisenhower's Assistant AG and was put on the DC Circuit by Eisenhower, then made Chief Justice by Ike's old VP Nixon. Eisenhower was fairly decent about race -- his DOJ was an amicus urging desegregation in Brown -- so his not-conservative-for-the-time views in that respect may be a predictor for Burger. Rehnquist, in contrast, worked for Nixon, who opposed busing to desegregate. Scalia also was a Nixon/Ford guy, while Thomas, despite being nominated to both the DC Circuit and SCOTUS by the more moderately conservative George HW Bush, worked for years under Reagan -- as did Roberts and Alito.

So I guess those who want Republican presidents to nominate moderate conservative judges should look for those with no executive branch experience, or those who served under Democratic or moderate Republican presidents. The last one of those having been Bush I, I guess look for "William Barr" on resumes. (Thornburgh having been a vestige of Reagan.) I'd be warier of Bush I's SG, however -- he started as counselor to Reagan's AG.

Michael C. Dorf said...

Sobek is right about circuit judges. there is both less scrutiny by the white house and the added complexity of senate rules. thus, the second circuit NY nominees with two Dem Senators from NY end up being less conservative than from states with two Repubs, and even in states with 2 Republican Senators, other factors--such as rewarding party loyalists--come into play as well. All of this is true with Dems too.

Benjam said...

i thought that the senatorial courtesy extended only to district court nominations. it extends to the circuit courts as well?

Benjam said...

i mean to say, how could it apply to the circuits? each circuit covers multiple states.

Mike said...

While circuit courts cover more than one state, each seat is considered assigned to a state (usually based on where a judge maintains his or her chambers). For example, Judge Reinhardt's chambers are in Pasadena, CA while Judge Tallman's chambers are in Seattle, WA. So Reinhardt is considered a CA judge while Tallman is considered WA. Normal courtesy is that each seat stays in the state where it was with the last judge. So when Reinhardt retires, in theory he should be replaced by someone from Southern CA.

Prof. Dorf~
I think your discussion of Justice Burger is somewhat stunted by the fact that (at least according to The Brethren) Burger frequently changed positions so that he would not be the only person voting a certain way. Also, several of his opinions- including Swann- are apparently Burger opinions in name only and were really written by either every other Justice or some combination of Stewart, White, Powell and/ or Stevens.

Sobek said...

Another thought on circuit judges: during the Alito hearings, Sen. Kennedy was criticized for his attacking Alito, although Kennedy had voted for him on the nomination to the Third Circuit. Kennedy's response was that it was far more important to scrutinize a lifetime appointment to the highest court in the land.

I thought that was a very silly response. First, circuit judges also get a lifetime appointment, so Kennedy's emphasis of that factor is irrelevant. Second, just as a matter of statistics, an appointment as a federal appellate judge is, for the vast majority of cases in that jurisdiction, to the "highest court in the land." If Alito's temperament was inappropriate or his capacity insufficient for the Supreme Court, then Kennedy did the country a very grave disservice by approving the nomination.

Of course I can't imagine that's what really happened. The fact is that the politicization of the judiciary is an on-going phenomenon, and Americans cared a lot less about lower federal judges in 1990 than they do now.

Benjam said...


i fully agree that circuit court appointments are extremely important and both branches involved treat them as such. there have been a number of very contentious circuit court nominations, including a number of withdrawn nominations. so it seems to me that if executive branch service is relevant in the selection process of supreme court justices (and ultimately to their jurisprudence over time), one would expect to see the same at the circuit court level.


thanks for that. sometimes i amaze myself with what i dont know. am i correct that the customary roles of the senators from a given state are different in circuit court appointments as opposed to district court appointments?

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