Thursday, April 22, 2010

Why Isn't the Supreme Court More Liberal?

By Mike Dorf

In my latest FindLaw column, I discuss the evolution of Justice Stevens from a moderate conservative to the "leader of the Supreme Court's liberal bloc."  I offer reasons why, other things being equal, Justices are more likely to become more liberal over time than more conservative.  My diagnosis, with a wink at Stephen Colbert ("Reality has a well-known liberal bias"): The law has a liberal bias.  (Read the column to see what I mean.)  In light of my analysis, how do we account for the fact that the Supreme Court has not gotten more liberal over the last 40 years?  Herewith, a few factors:

1) Maybe I'm just wrong and the law doesn't have a liberal bias.

2) The Court will shortly have 4 Democratic appointees and 5 Republican appointees but for most of the last 40 years, there have been substantially more Republican appointees than Democratic ones.  Nixon appointed 4 Justices (Burger, Powell, Blackmun, Rehnquist), Ford 1 (Stevens), Carter 0, Reagan 3 (O'Connor, Scalia, Kennedy), Bush I 2 (Souter, Thomas), Clinton 2 (Ginsburg, Breyer), Bush II 2 (Roberts, Alito), and Obama so far 2 (Sotomayor, Yournamehere).  If you're keeping score, that's R 12 - D 4.  Given the dominance of Republican appointees in this period, the surprise is that the Court hasn't been much more conservative.

3) As I note in the column, and as others have noted, the Republicans have gotten better at screening for ideological purity over the years.  The last "mistake"--in the sense of a Republican appointee to be named to the Court who turned out to be more liberal than expected--was Souter, who has retired.  Not counting the soon-to-be-retired Stevens, the only Republican "mistake" currently on the Court is Kennedy and he is less liberal than other Republican mistakes (less liberal than O'Connor, a lot less liberal than Souter, and a whole heck of a lot less liberal than Warren and Brennan).  Plus, Kennedy is not really a mistake in the sense of a Justice picked to be conservative who ended up less conservative.  As President Reagan's third choice--following the defeat of Bork and the withdrawal of D. Ginsburg--Kennedy was named precisely because he was a moderate.  (Stevens too, as I explain in the column.)  I can imagine a future Republican President deliberately naming a moderate if the politics counsel such a choice, but it's hard to imagine a future Republican accidentally naming a moderate or liberal.

4) My hypothesis--explained more fully in the column--is that individual Justices will tend to drift in a liberal direction relative to the country as a whole.  But as numerous political scientists have observed, and as Barry Friedman's The Will of the People documents at length, when the gap between the Court and the country widens too far, the people will tend to rein in the Court.  (The people will also rein in a too-conservative Court.)  One mechanism for doing so is the appointments process and so, even in the days before Republicans got really good at picking staunch conservatives, the replacement of a Republican who had drifted left or of a left-leaning Democrat with a Republican who may eventually drift left but starts off further to the right, ends up moving the Court to the right, at least for a time.  With only two possible exceptions, every appointment by a Republican since the Nixon Administration moved the Court to the right.


Burger for Warren
Rehnquist for Harlan
Powell for Black
Blackmun for Fortas
Stevens for Douglas
O'Connor for Stewart
Scalia for Burger
Kennedy for Powell
Souter for Brennan
Thomas for Marshall
Roberts for Rehnquist
Alito for O'Connor

The only possible exceptions here are O'Connor and Roberts, but I think even they fit the pattern.  When she was appointed, O'Connor was at least in the same ballpark as Stewart and arguably more conservative.  Meanwhile, by the end of his tenure, Rehnquist had drifted to the center on a number of issues, somewhat to the left of where Roberts is.  Overall, therefore, the pattern is dramatic.

Meanwhile, Democratic Presidents have had fewer opportunities to move the Court to the left, and haven't really tried.  Ginsburg for White moved the Court to the left, though Breyer for Blackmun moved the Court a bit to the right.  Sotomayor for Souter is a wash, maybe even a slight shift to the right on criminal justice issues.  It seems unlikely that Obama will replace Stevens with someone who is more liberal, and there's a good chance he'll pick someone more conservative.

So we have the answer: The Court doesn't become more liberal over time because even though some Justices drift left, the appointments process resets the Court to the right.  Given that the era of leftward-drifting Republican appointees is now just about over, in the new era we should expect the Court to move to the right over time.  That very much tempers the optimism expressed in my column.


Charles Fulton said...

Does Blackmun for Fortas really move the court to the right in the end? At his retirement Blackmun took the stance, previously taken only by Brennan and Marshall (and now Stevens) that the death penalty was unconstitutional in all cases. Also, there was a strain of emotionalism (dare call it empathy?) in Blackmun's jurisprudence that makes him an odd fit on the right: consider his dissent in DeShaney v. Winnebago County. Maybe at the outset Blackmun moved the court right, but not for long.

Michael C. Dorf said...

Mackenson: Agreed. That's why I said the substitution of a more conservative Justice "ends up moving the Court to the right, at least for a time." Then, after a time, if that Justice becomes more liberal, the effect is washed out with respect to that seat, but meanwhile repeated as to other seats.

Sal said...

I think we are losing sight of the forest because of the trees. Reading this reminds me of listening to ESPN discussions about fantasy leagues. Doesn't anyone see anything wrong with this process of nominating and vetting judicial appointments? The Constitution allows for lifetime appointments in the Judicial Branch because it strives for individuals who will be impartial in the application of the law and it does not envision individuals indebted to partisan politics. Yet, here we are, fervently engaging in debates over left/right issues. Judges are supposed to impartial. Accepting that we as humans have different beliefs and opinions, we must accept that judges are entitled to and will have personal beliefs and opinions. The process of appointing judges, then, should be along the lines of the voir dire process: can a judge put aside his personal convictions and render a decision based on the facts presented and the law? Can we really expect to see any meaningful changes in our judiciary if we don't address these issues?

We should consider the literal and political meanings of some of the fashionable labels. I think somewhere along the way the words conservative and liberal have lost their traditional meanings. In my layman way of thinking, I would lean toward someone label as conservative because I view that person as someone who would uphold traditional values, the Constitution of the United States. Yet, we often find that the so called conservatives are frequently credited with disregarding the Constitution and its intended protections of citizens from government.

I also find it somewhat incongruent that most judges seem to evolved from the lawyer profession. If we consider that lawyering has traditionally been on of the most maligned professions, it seems ironic that when a lawyer is appointed to a judicial position, he or she immediately becomes honorable.

Unknown said...

"I can imagine a future Republican President deliberately naming a moderate if the politics counsel such a choice"

See: Miers, Harriet.

Sam Rickless said...

I agree with everything you say, Mike. Perhaps I might add a few additional remarks to your column and your post.

First, an interesting, if ironic, piece of evidence for your claim that the law has an intrinsic liberal bias in the sense that the application of principles tends to expand their scope over time. Consider Heller, in which the Supremes found reason to expand the scope of the Second Amendment, from groups with a military purpose to individuals. (I know that the decision was purportedly grounded on an originalist reading, but the evidence for that reading is SO weak that I am convinced that the "expansion" idea was doing the real work.)

Second, if the law has an intrinsic liberal bias, the most important factor in the leftward drift of Republican appointees is their openmindedness and lack of fundamental interpretive bias. I do not predict any leftward drift in the case of Scalia, Thomas, Alito, or Roberts, because the first two endorse, and the second two go along with, originalist *theories* of interpretation. What is interesting about O'Connor, Souter, and Kennedy is that none came to the Court with an overarching *theory* of interpretation. Each came to the Court with a set of practices and habits and rules of thumb.

Third, the main reason for pessimism in the short term is that we are still living through the cultural backlash against the excesses of the sixties. So the people have been electing right-leaning leaders. (Clinton was a right-wing Democrat.) At the same time, right-wing societies (such as the Federalist Society) that are designed to make it possible for ideologues to identify themselves provide a rich source from which to pick reliable right-wing Justices.

Fourth, there is reason for long-term optimism. The backlash against the sixties will run its course. Young folks nowadays think of the sixties as ancient history. According to the polls, they are way more liberal on social issues than their parents or grandparents. Over time, the pendulum will swing in their direction and result in the election of left-of-center Presidents. It is possible that in the next ten years, the Court will acquire a fifth reliably right-wing Justice. But if that happens, this will simply radicalize the general population, leading to a political left-leaning realignment (similar to the FDR realignment).

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at least for a time. With only two possible exceptions, every appointment by a Republican since the Nixon Administration moved the Court to the right.
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