Wednesday, June 20, 2012
Ideological judges, evolving judges
A colleague offered the following, as a possible explanation for the increased public perception of a divided partisan Supreme Court: We have no "cross-over" justices. The "conservative" justices all were appointed by Republicans, the "liberal" justices all were appointed by Democrats (my colleague rejects these labels and so do I, thus the danger quotes, but they are the labels everyone is using). We no longer have a Justice Stevens or Souter or, from the other side, a Justice White, who regularly vote contrary to the constitutional and political viewpoints associated with the party that appointed them.. So the Court looks like Congress and the public begins to view it that way.
Let me suggest a corollary idea: Justices are not "evolving" anymore. The "conservative" justices generally remain in step with the prevailing political leanings, interests, and issues of the appointing party, even 20-25 years later. Same with the "liberal" justices.One explanation is that the core constitutional commitments associated with each party have not evolved or have remained consistent over time. In other words, we are not seeing people such as Justice Frankfurter or, to a lesser extent, Justice Black. Both were Democratic appointees appointed with the hope that they would uphold congressional power to enact the New Deal and they followed the Democratic line in doing so. But they then fairly quickly found themselves out of party step when the core issues about which Democrats cared became individual liberties, substantive due process and unenumeratred rights such as privacy and reproductive freedom, and vigorous judicial policing of individual liberties.
Instead, current constitutional battle lines remain consistently drawn across issues and the Justices are mostly in step across issues and provisions. Thus, while Frankfurter had Democrat-friendly views on congressional power, he had less-Democrat-friendly views on the new issues of civil liberties and judicial protection of civil liberties. So he was voting contrary to what you would expect from a Democratic appointee by the 1950s. By contrast, Justice Scalia's views on congressional power, equal protection, and reproductive freedom match up with the prevailing Republican view, just as Justice Ginsburg's views on all three match up with the prevailing Democratic view.
Perhaps this is an inevitable result of the polarization of the parties. We get far greater consistency in the overall constitutional vision of each party, such that judicial appointees (who are far better vetted than they used to be) carry that vision across all the issues. Roosevelt appointed Frankfurter in 1939 with an eye on upholding the New Deal; he was not thinking about these other constitutional questions or anticipating that they might become important. On the other hand, Reagan appointed Scalia or Obama appointed Kagan with the expectation that each would be a consistent vote for their constitutional visions across the board, because the respective visions are so consistent down the line.
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I don't think the public gets down into the weeds so much to see these sorts of trends, so I'm skeptical that it is influencing public opinion.
Posted by: Orin Kerr | Jun 20, 2012 3:37:57 PM
The public is definitely aware of who appointed which justices (and how each of those justices voted) because that piece of information is included in every article and story discussing how a justice voted in every case.
Posted by: Howard Wasserman | Jun 21, 2012 4:46:55 PM
There seems to be a few more cases of crossover, at least on some issues, in lower courts. One of the judges who voted to strike down the PPACA was appointed by Clinton, e.g., while conservative appointees have voted to strike down DOMA.
Posted by: Joe | Jun 21, 2012 6:55:42 PM
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