Long before Sandra Day O’Connor announced her retirement, one of the rallying issues for the cultural right wing was to do whatever possible to ensure that George W. Bush pick a “reliable” conservative who would strike down the decisions supported by apostate conservative Republican appointees like Anthony Kennedy, John Paul Stevens, David Souter and O’Connor herself. The rightwing is obsessed by the idea that Republican Presidents have muffed their Supreme Court appointments by picking people who weren’t really conservative, but who “concealed” their true beliefs until, safely ensconced on the Supreme Court for life, they wage war on mom, apple pie, unborn children and “sexual relations as God intended.”
There’s a problem with the theory, however. It’s not wrong in every instance; it seems pretty clear that the first Bush administration had no clue as to who David Souter really was or what kind of Justice he would be; it’s hard to say he changed once he got on the Supreme Court, because until he was on the Supreme Court he was a public blank slate. But in general, the problem (from the perspective of cultural conservatives) isn’t that the picks of Republican Presidents haven’t been conservatives. The problem that faces conservatives is that being on the Supreme Court makes almost everyone more liberal.
First, lets dispense with the two exceptions to my theory: Antonin Scalia and Clarence Thomas. Scalia, despite his pontificating about original intent, is really just a sophist who bends his decisions to fit whatever is the prevailing view on the political right. And Thomas came to the bench as a mediocre jurist without a well-formed theory or approach to jurisprudence. In each case the reason they’ve remained as conservative as they were when they came to the bench is that they’re both utterly lacking in a proper judicial temperament. Scalia is haughty and arrogant, and increasingly prone to nasty dissents delivered orally from the bench on the release of opinions with which he disagrees. And Thomas was revealed unsuitable for the bench during a largely forgotten exchange during his confirmation hearings. It was the day that the Anita Hill story broke, during a lunch break, and on the resumption of the hearing Thomas delivered an angry rebuttal to the claims he believed had been leveled against him. The recently deceased former Democratic Senator from Alabama, Howell Heflin, asked Thomas if he had even read the accusations. Thomas admitted he hadn’t, which prompted Heflin to ask the rhetorical question of Thomas, don’t you think that points to a problem of judicial temperament? It does, almost 15 years later, I still find it the most damning comment made against Thomas.
But for the rest of the Republican-appointed Justices, being on the Supreme Court and possessing a judicial temperament seems to have made them more liberal, especially on issues related to diversity and pluralism. Let’s look at each of the Republican appointees since the end of the Truman administration (year of appointment in parentheses):
John Harlan Marshal II (1955): Can’t easily be characterized either a liberal or conservative, but in contrast to “such current Justices as Antonin Scalia and Clarence Thomas, he eschewed originalism and textualism; in keeping with this "common-law" style of constitutional interpretation, he favored standards over rules, since the former were better able to adjust to changing conditions.”
William J. Brennan, Jr. (1956): Considered one of the court’s great liberals, generally portrayed by conservatives as the poster child of liberal judicial activism. He’s probably the only clear example of, from the perspective of conservatives, an obviously “bad” appointment.
Charles Evans Whittaker (1957): Don’t know anything about him, and couldn’t find anything quickly; he only served five years before retiring.
Potter Stewart (1958): In 1965 Stewart dissented in Griswold v. Connecticut, which established a right to privacy in a case concerning the sale of contraceptives. However, by 1973 he had accepted the validity of the right to privacy, and voted with the majority in Roe v. Wade.
Warren E. Burger [Appointed Directly to Chief Justice] (1969): Burger was a vocal critic of Earl Warren and pledged to be a strict constructionalist, but once on the court he shifted, supporting Roe v. Wade and largely putting a brake on the expansion of rights driven by the Warren court, but not moving to reverse the decisions of the Warren Court.
Harry Blackmun (1970): One of the best examples of the liberalizing effect of being on the court. As the author of the opinion of Roe v. Wade, he’s vilified by the cultural right as an awful appointment of a liberal by a Republican. But his transformation is probably clearer by looking at his death penalty positions. Initially, he was a strong supporter of the death penalty, dissenting in curtailments of the death penalty early in his tenure. But by the end of his term, he was resolutely against the death penalty, stating in 1994 that "[f]rom this day forward, I no longer shall tinker with the machinery of death."
Lewis Powell (1972): Powell was typically the swing vote on contentious cases. He most famously wrote the opinion in the 1978 Bakke case, which banned the use of racial quotas but upheld the use of affirmative action. But after his retirement in 1987, he eventually changed his mind on the death penalty, concluding that it should be abolished. And despite casting a deciding vote in Bowers v. Hardwick, which denied the extension of the right to privacy cited in Roe to overturn laws against consensual intercourse between partners of the same sex, he later regretted the vote and said the dissent was the better argument.
Now what of the current members of the court? Ford-appointee John Paul Stevens is solidly in the “liberal” camp. Initially supportive of capital punishment and a dissenter in the Bakke case, he’s now generally against the death penalty and voted with the majority on the University of Michigan affirmative action case. Sandra Day O’Connor is, like Lewis Powell before her, typically the deciding vote on 5-4 decisions. She was a deciding vote on Casey v. Pennsylvania (upholding Roe v Wade), and wrote the opinion on the University of Michigan case. And the man who replaced Powell, Anthony Kennedy, may be, after Blackmun, one of the best examples of someone being “liberalized” by his tenure on the Supreme Court. Considered a moderately conservative jurist when appointed to the bench by Ronald Reagan, Kennedy has become the cultural conservatives’ most hated Justice for his supposedly “activist” decisions on landmark cases like the 1992 affirmation of Roe in Casey v. Pennsylvania, the Lawrence case that overturned Bowers, and this year’s ban on capital punishment for juveniles.
Even William Rehnquist can be seen as less conservative than what the James Dobsons of the world would like. According to Jeffrey Rosen,
Twenty-five years later, after having repeatedly ridiculed the constitutional soundness of the decision requiring police officers to read suspects their Miranda rights, Rehnquist voted to uphold it. "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture," he wrote in a 7—2 opinion for the Court in Dickerson v. U.S., in 2000. Rehnquist's apostasy provoked one of Justice Antonin Scalia's most vitriolic dissenting opinions. Joined by Justice Clarence Thomas, Scalia declared, "Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance."
Rehnquist's evolution from Miranda's leading critic to its improbable savior infuriated conservatives and confused liberals; but in fact it was emblematic of his career. Throughout his long tenure, liberals always simplistically lumped Rehnquist together with the other conservatives on the Court, whereas conservatives never fully embraced him as one of their own. Furthermore, liberals have never understood how significantly and frequently Rehnquist departed from doctrinaire conservative ideology, and conservatives have failed to grasp that his tactical flexibility was more effective than the rigid purity of Scalia and Thomas. In truth, Rehnquist carefully staked out a limbo between the right and the left and showed that it was a very good place to be. With exceptional efficiency and amiability he led a Court that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country—generally siding with economic conservatives and against cultural conservatives. As for judicial temperament, he was far more devoted to preserving tradition and majority rule than the generation of fire-breathing conservatives who followed him…
''I'm a strong believer in pluralism," Rehnquist told The New York Times Magazine in 1985, the year before he was appointed chief justice. "Don't concentrate all the power in one place … You don't want all the power in the Government as opposed to the people. You don't want all the power in the Federal Government as opposed to the states."
All of this raises a question: why does it seem that most
people, after serving some time of the Supreme Court, moderate their positions
on contentious issues, especially those pertaining to personal privacy and the
reach of the government to take away personal liberties or life? I don’t know enough about the court or
jurisprudence to confidently offer an explanation, but I have some
thoughts. For instance, many people
come to the court with a strong sense of place (like O’Connor and Arizona,
Powell and Virginia, or Kennedy and Sacramento). While in the context of their previous lives they were probably
quite cosmopolitan and open-minded, dealing with the issues before the Supreme
Court will undoubtedly expand the horizons of anyone. Likewise with professional background; some come to the bench via
academia, or after work in the private sector. Few Justices in recent decades had experience in electoral politics, so
they may not have the greater understanding of our nation’s diversity that one
would more likely get from running for office in a large, diverse state or
highly heterogeneous district. There is
also the diversity of experience and outlook among the justices
themselves. Arguing with other
corporate attorneys or experts in a few areas of the law probably doesn’t
challenge ones deeply held beliefs on personal liberties as much as weighing
cases about reproductive rights, religious freedoms, criminal punishment and
the like. Whatever the case, the seems
to be some dynamic that leads Justices to question and change their
conservatives beliefs to a much greater degree than the liberal appointees to
With the court so evenly divided on so many crucial issues, it’s not a great comfort for progressives to know that the odds are good that any competent jurist qualified to sit on the Supreme Court who also possesses a sound judicial temperament is likely to moderate their some of their conservative positions over time. There may not be much time left to protect some of the positions that are not protected by only a 5-4 margin. But over time, it appear that even many of those jurists who go to the court as advocates of bloodlust (capital punishment) and government control over reproductive rights change their mind. Let’s hope the same thing happens with George W. Bush’s appointment(s) to the Supreme Court.