January 13th, 2006

Brad @ Burning Man

Supreme Court Judges, Right Wing Buyer's Remorse

I've seen this subject written about before, but never in the depth or at the quality level of this: Jon D Hanson and Adam Benforado, "The Drifters: Why the Supreme Court makes justices more liberal," Boston Review January/February 2006. Set aside some time for this one, it's worth it; way better than my ramblings on history. For those of you who haven't heard anything about this issue, a very quick summary of the question, and then of this article. History suggests that no matter which side the judge that gets appointed to the Supreme Court started out on, within about five to six years they nearly all turn into moderate liberals. When Democratic Presidents appoint left-wing judges like FDR's Justice Frankfurter, or Kennedy's Justice White, they drift to the right. When Republican Presidents appoint hard-core right-wing judges like Eisenhower's Warren, Nixon's Justices Blackmun and Lewis Powell, Ford's Justice Stevens, and Reagan's Justices O'Connor and Stevens, within a few years they drift a long way left, to moderate liberals. Justices like Reagan's Justice Scalia and Bush the Elder's Justice Thomas, who start out right wing and stay right wing, are rare exceptions to a broad general rule. There's been a fair amount of ink spilled on the subject of why this happens, on both the left and the right, but I've never seen any analysis as thorough, well thought out, and extraordinarily well written as this one.

The central paragraph (and a half) is this:
In effect, they missed—as many of us continue to miss—the fact that the Supreme Court, by altering a justice’s situation, often alters the way that justice behaves and, perhaps, sees the world. ¶ At least three types of situational influences can have a large effect on a judge’s behavior and, hence, the extent of their juridical drift: the first is the unusual array of forces that sets judging apart from other lawyerly occupations such as legislating or advocacy; the second is the particular background and experiences of individual judges; the third is all the forces external to the court—including think tanks, the media, the academy, and public attitudes—that appear to strongly influence the judicial decision-making process.
Let me sum up, but don't trust my summary or let it make you complacent enough to skip the article if this is the kind of thing that you care about at all; like I said, this is much, much better than anything I could write on the subject. But the summary of what they mean by the three "situational influences" is this:
  • Hanson and Benforado make the case that it is only when they spend a couple of years in the Supreme Court, with its weight of centuries of tradition, that they suddenly feel a powerful historical and cultural pressure to be more fair to both sides than they ever have before in their lives. There's also more pressure to be fair because for the first time, when they're pontificating about the big issues gripping the country, they have to do it while looking an actual human plaintiff and an actual human defendant in the face. It's one thing to speculate about what you'd do if you were on the Supreme Court, they say, and a different thing altogether to be sitting there on the Supreme Court; apparently it's nothing like you think it will be.

  • Until he becomes a judge, a lawyer doesn't actually want to look equally sympathetically on both sides' cases, because he's being paid by one side, and it's easier for him to stay excited about his side if he stays a little blind to the contrary case. When he first becomes a judge, he's probably up for election or re-election, taking campaign finance cash from mostly one side. The tenured position of the Supreme Court Justices grants them more independence than they're used to.

  • Even more than any other appeals court, the Supreme Court's finality means that every lobbying group, advocacy group, and anybody else who cares goes all out, way more than they would in any other lower court. This, according to Hanson and Benforado, means that, in all probability for the first time in their lives, the Justices are reading and hearing the other side's best arguments. They're also equipped with some of the best law clerks in the world, so they're in the best position to hear each side's best argument summed up at its most coherent and persuasive. That's got to produce a centrist drift, they argue, since before that the Justices, like everybody else, heck, like most of you, mostly only read and watched and heard and hung out with people who already agreed with their politics.
The part of this that's still going to get up the nose of any social conservative who reads this is the off-hand answer to the question, "OK, so obviously more centrist. But why is it always perceptibly left of center?" And the answer, which to give them credit they at least avoid sound this smug about, is, "because the liberals are right." Liberals look at both sides of the issue and conservatives don't, so of course the conservatives have farther to move when they hear both sides. (This "liberals look at both sides" argument is something I'm having a hard time rationalizing with the blind idiocy I saw coming out of Move-On.org in 2004.)

So why were Antonin Scalia and Clarence Thomas immune? Anger. These are two guys who have a serious hate-on for the other side, one that renders them completely immune to rational argument because no matter how long they sit on the court, they're just never going to get over what they were put through on their way there. You know the old saying that it is a terrible thing to shoot at a king -- and miss? It might benefit the left to remember that it is a terrible thing to Bork a justice ... and fail. Who knows whether, if Hanson and Benforado are right, if Anita Hill hadn't become a household name that Clarence Thomas might not be voting with the liberal bloc on the court by now?