Friday, June 29, 2007
What You See is What You Get
At least until recently, it was the conventional wisdom that it is difficult to predict the voting behavior of Supreme Court nominees. Conservatives would complain that Republican appointees tend to drift leftward the longer they serve. Liberals would bemoan the increasing prominence of stealth nominees whose writings and comments were so thin as to prevent serious analysis. And well-meaning good government types, including some of the Justices themselves, would argue that extensive pre-confirmation vetting of a nominee's views were not only unseemly, but also pointless, as the shifting tide of issues and the very process of judging would quickly date those positions.
Well that conventional wisdom has grown a bit ragged over the last few years and this year's Supreme Court term probably (and hopefully) has driven a final nail in its coffin. The truth of the matter is in fact squarely the opposite: with the possible exception of Justice Stevens, every single Justice on the current Court has behaved on the bench almost exactly as his or her pre-confirmation writings and confirmation hearing testimony would have suggested.
Let's take them one by one, starting with the newest Justices. John Roberts and Sam Alito came across as rock-solid judicial conservatives, committed to limiting the powers of the courts and along the way chipping away at the substantive excesses of the Warren Court. Check. They also came across as judges with long time horizon who understood the complicated dance of precedent and principle. Check. Even the quirks of their judicial personalities were right there in the record--Roberts' near obsession with standing; Alito's comparative sympathy with First Amendment plaintiffs.
Or take the two Democratic appointees on the Court: Steven Breyer and Ruth Bader Ginsburg. Both had track records and writings that marked them as clearly and on first principles hostile to attacks on federal power and on the rights legacy of the Warren Court. Yet, on the other hand, neither was a doctrinaire left-winger: Breyer having demonstrated both a wonkish approach to criminal justice issues that boded ill for criminal defendants and a sympathy to the efficiency-oriented concerns of businesses in regulatory cases; Ginsburg having built a moderate record on the DC Circuit largely by eschewing broad approaches to statutory interpretation and reading rules and texts with a professorial precision. On the Court, they have behaved as, well, themselves.
Even Justices Kennedy and Souter, much vilified for allegedly shifting left on the Court, told us who they were in their opinions and testimony. Justice Kennedy is a small-town, civics-books conservative, in accord with the judicial and social conservative agendas on most issues, but genuinely--indeed almost uncritically--believing that it is both America's destiny and his duty to give concrete meaning to soaring abstractions like "liberty" and "equality." While Justice Souter is harder to pin down with a label--if I had to try I'd somehow cross "Yankee Republican" with "traditional Anglo-American common law jurist"--his tour-de-force performance before the Senate Judiciary Committee told us what kind of judge he was going to be: cautious, humble, learned, yet willing to take seriously the courts' traditional equitable and gap-filling roles in both statutory and constitutional matters, in other words a genuine moderate by historical standards.
Certainly, the Justices retain the ability to surprise us in individual cases or areas of the law. (No one, for example, would have predicted that Justice Souter would have become such a solid vote for defendants in criminal procedure cases.) And, if Justices stay on the Court long enough, history may well reshuffle the issues in a way that require them to stake out new positions or choose between different strands in their judicial personas (witness the late Court careers of both Hugo Black and John Paul Stevens). But, in the medium term and in the larger picture, there are few if any surprises. In this era of well-vetted nominees with long and impressive academic and professional credentials, what you see is what you get.
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Kennedy's opinion in the school cases delivers another gem in the vein of the "sweet mystery of life":
"Under our Constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classified on the basis of his race or the color of her skin."
What an odd combination of points. Surely it would have been enough for him to have said, "Under our Constitution the individual is proctected against state intervention that classified on the basis of his race or the color of her skin."
What that middle bit -- "the individual, child or adult, can find his own identity, can define her own persona" -- adds to the legal point is beyond me. Kennedy is seemingly obsessed with the concept of self-definition, and he's throwing it in even where it's not plausibly relevant.
It reminds me of Bob Solow's criticism of Milton Friedman: "Everything reminds Milton of the money supply. Well, everything reminds me of sex, but I keep it out of [my] paper."
Posted by: Adam | Jun 29, 2007 10:51:43 AM
I believe that the thesis advanced in this post applies to Justice Stevens as well. See, for example, his dissenting opinion in Groppi v. Leslie, 436 F.2d 331 (7th Cir. 1971) (en banc), rev'd, 404 U.S. 496 (1972).
Chapman University School of Law
Posted by: Larry Rosenthal | Jun 29, 2007 11:07:17 AM
I am 95% in agreement with you about Justice Stevens--most of the controversial positions he has taken on the Court are presaged by something in his earlier opinions or record. I provided that caveat at the beginning because I didn't want my larger point about the transparency of modern nominees to get obscured in a debate about Justice Stevens, who was nominated in an earlier era and has a wonderfully complex legacy.
Posted by: Andrew Siegel | Jun 29, 2007 1:10:46 PM
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