Strauss on the Reality of Roberts

It's Time to Deal with Reality The myth of the unpredictable Supreme Court justice debunked
David A. Strauss
Chicago Tribune
August 7, 2005

As Americans try to figure out what Judge John G. Roberts Jr. will be like as a U.S. Supreme Court justice, one idea seems to have become almost conventional wisdom: that whatever Judge Roberts is now, once he is on the court he might develop into something different. In particular, the thinking goes, even if he is the intense conservative suggested by his Reagan-era memoranda, he may become more moderate as a justice.

Don't believe it. Judge Roberts is an exceptionally able lawyer--as good as they come--and it is quite possible that the Senate will confirm him. But whatever his views are now, the Senate, and the American people, should count on his being the same person throughout the 30 or so years he is likely to spend on the court if he is confirmed. The idea that judges change their basic philosophical views once they are on the bench is a myth.

In the current climate, the myth seems to serve everyone's purposes. Conservatives use it as a rallying cry: "No more Souters!" they say, to insist that President Bush appoint a committed conservative who will not--as Supreme Court Justice David Souter supposedly did--become more liberal on the court. For liberals, the myth provides a glimmer of hope, a way to be at least a little optimistic about conservative appointees to the court. And for all of us, there is something heartening about the idea that people can learn and grow.

Staying on target

No doubt many justices do learn and grow in many ways. But when a president has a specific agenda in mind in appointing a justice--and Bush has made no secret that he wants to appoint someone like Justices Antonin Scalia or Clarence Thomas, the most conservative members of the current court--the new appointee almost never disappoints the president who chose him.

For example, when the Supreme Court in the mid-1930s struck down some of the social-welfare laws and business regulations that were at the heart of President Franklin Roosevelt's New Deal, Roosevelt attacked the court and said he wanted justices who would take a more expansive view of federal power. Roosevelt made eight appointments to the court, and he got what he wanted: Every one of the Roosevelt appointees, to the end of his career, deferred to Congress on laws having to do with federal authority over the economy.

President Richard Nixon made campaign promises to appoint justices who would stop the expansion of criminal defendants' rights and slow the pace of racial desegregation. Nixon made four appointments in his first term, and within less than a decade the Supreme Court had done exactly what Nixon promised--and has not changed course since.

Why, then, do people think that justices routinely change their views? Sometimes the issues, not the justices, change. A "liberal" on the New Deal might be "conservative" on matters of race relations or civil liberties; the unanimity of the Roosevelt justices began to fray when those issues came to the fore. A judge who was a "conservative" on criminal issues might be a "liberal" on reproductive freedom: Roe vs. Wade would have come out the other way, had not three of the Nixon four joined in the seven-justice majority.

Sometimes presidents choose justices for non-ideological reasons and are then disappointed--although they have no reason to be--when a justice does something of which they disapprove.

President Dwight Eisenhower famously said that appointing Earl Warren as chief justice was "the biggest damn fool mistake I ever made." But he appointed Warren to pay off a political debt, not because he thought Warren would advance a particular legal agenda. Eisenhower should not have been surprised when Warren, a progressive, reformist Republican--at a time when the national Republican Party was more strongly in favor of civil rights than the Democrats--led the court to declare racial segregation unconstitutional and pressed for the reform of racially discriminatory state criminal justice systems.

Observing the justices

Today, though, the perception that justices have "evolved" or "moderated" has, mostly, a different cause. In the last generation, the Supreme Court--dominated by appointees of Republican presidents--has made a distinct turn to the right. Justices who were once comfortably on the conservative side have found themselves labeled moderate, even liberal, even though they did not change their views.

On the current court, for example, Justice Anthony Kennedy and retiring Justice Sandra Day O'Connor are often described as having moved to the moderate center, or perhaps even further to the left, while Justices John Paul Stevens and Souter--Republican appointees, like O'Connor and Kennedy--are said to have become aggressive liberals. But judged by the standards of the last half-century, all four justices are just what one would have expected when they were appointed: Kennedy and O'Connor are solidly conservative, and Stevens and Souter are moderate conservatives.

Kennedy and, particularly, O'Connor have led the revival of states' rights in American constitutional law--a doctrine that the U.S. Supreme Court of the 1940s, 1950s and 1960s repeatedly rejected. Chief Justice William Rehnquist began to advance this position in the 1970s. Now that Rehnquist has been joined by the even more conservative Scalia and Thomas, the states'-rights position has a majority--and O'Connor and Kennedy, being slightly less conservative than the others, seem like moderates.

Kennedy has taken the position that affirmative action is unconstitutional in all circumstances, and O'Connor believes it is constitutional only when practiced in a limited and qualified way. Are these moderate positions? Put it this way: Even Nixon, the author of the Republican Party's Southern strategy of appealing to racial resentments, did not think affirmative action was unconstitutional. Whatever the merits of O'Connor's or Kennedy's views, a position well to the right of Nixon is hardly moderate or centrist.

And O'Connor and Kennedy were members of the five-justice majority that, in Bush vs. Gore, intervened in a presidential election on legal grounds that can charitably be described as flimsy. Bush vs. Gore was one of the most remarkable judicial power grabs in American history. It would have been anathema to judicial conservatives of the 1950s and 1960s, like Justices Felix Frankfurter and John Marshall Harlan, who repeatedly warned the court about entering the "political thicket."

What about Stevens and Souter, who have supposedly moved well to the left? When they were appointed, by President Gerald Ford and President George H.W. Bush, respectively, they seemed likely to be moderate, independent-minded justices with a leaning toward the conservative side of the spectrum. And if you compare their views to the positions taken in recent decades by liberal justices--and even some not-so-liberal justices--Stevens and Souter come off as exactly that: moderate conservatives. On the current court, though, that makes you a "liberal."

A few examples:

- In 1974, the U.S. Supreme Court declared capital punishment, as it was then practiced in the United States, unconstitutional. The court later allowed states to amend their laws and reinstate capital punishment, but three justices--William Brennan, Thurgood Marshall, and, later in his career, Harry Blackmun--insisted that capital punishment was unconstitutional in all circumstances. Stevens and Souter have consistently rejected that view.

- In 1973, four justices--not quite enough to carry the court--concluded that it was unconstitutional to fund public education through local property taxes when the result was that rich school districts spent far more, per pupil, than poor school districts. Neither Stevens nor Souter has taken that position.

- Throughout the 1970s and 1980s, the court walked a fine line on the question of whether public funds could be spent on religious schools, allowing certain forms of aid (such as textbooks) but not others (such as remedial instruction). When Thomas and Kennedy joined the court, the pendulum swung sharply in the direction of allowing--sometimes even requiring--more state aid to religious schools. Stevens and Souter adhered to the earlier cases. But now, instead of being part of a moderate majority, they have become "liberal" dissenters.

- On abortion, the issue that has attracted the most attention, Stevens and Souter--the supposed liberals--have always been significantly more conservative than Brennan, Marshall and Blackmun were. A few years after Roe vs. Wade, the court ruled that the government could refuse to allow Medicaid funds to be used for abortions. Brennan, Marshall and Blackmun bitterly dissented. Stevens did not join them; characteristically, he took an independent, moderately conservative position, saying that Medicaid funds could be denied for most abortions but not for medically necessary abortions.

Souter has never questioned the holding that Medicaid funds could be denied for all abortions. Kennedy and O'Connor have actually voted to expand these rulings, allowing a state to prevent public hospitals and their employees from being used for abortions even when the patient was willing to pay the entire cost. They also have voted to uphold many other restrictions on abortion rights--parental notification requirements, waiting periods, mandatory "education" sessions for women seeking abortions, reporting and record-keeping requirements.

Souter in particular along with Kennedy and O'Connor have been pilloried by many abortion opponents because they did not vote to overturn Roe vs. Wade, as if that means they must be closet liberals. But Roe vs. Wade was, as I said, the product of the Nixon Court. Many conservatives agreed with it at the time, and since. And Kennedy and O'Connor, in particular, have allowed the right to an abortion to be so hedged around by restrictions that, for many American women, obtaining an abortion remains extremely difficult today.

As in any relationship ...

In today's climate, the assertion that justices have moved in a liberal direction has the effect of shifting the terms of the debate: If any justice who disagrees with Scalia and Thomas becomes, by definition, a liberal, then Scalia and Thomas begin to look more moderate. But it is the court that has changed, because of new appointees. No justice on this court has changed his or her basic beliefs in any major way.

Do justices ever change their core beliefs while on the court? Of course; it is possible to find some examples in the 216-year history of the court. But they are very much the exception. In putting justices on the U.S. Supreme Court--as in marriage--it is a bad idea to go into the relationship hoping that someone will change.

 

David A. Strauss teaches constitutional law at the University of Chicago Law School. He was special counsel to the Senate Judiciary Committee in connection with Justice David Souter's nomination to the U.S. Supreme Court.

 

Copyright 2005 Chicago Tribune Company

 

Faculty: 
David A. Strauss