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.