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New Theories of Evolution

When U.S. Supreme Court lawyers and scholars gather, they occasionally challenge each other to a sort of parlor game to see if they can name the justices who grew more liberal or more conservative.

Picking the first group is usually a no-brainer: con­servatives have railed for years against the left-leaning legacies of Republican appointees Harry A. Blackmun, David H. Souter, John Paul Stevens and Earl Warren—among other names that are spit like venom.

But trying to identify conservative converts gives pause. There’s Byron R. White, mostly. Felix Frankfurter, likely—the Roosevelt appointee wrote several opinions that agitated civil libertarians. Anyone else?

One impression that’s left is that there’s something about serving on the Supreme Court that turns rock-solid Republicans into flaming liberals but has little effect on Democrats, at least those of the New Deal or New Frontier eras.

Others charge that the Blackmuns and Souters are the exceptions; arriving from outside the Beltway, they grow susceptible to the genteel social charms of the Eastern intelligentsia or the lure of the media spotlight.

Then there are critics who say the times change, not the justices, and that what appears to be a jurist adrift is really a person clinging to his or her philosophy amid unforeseen legal currents.

“A ‘liberal’ on the New Deal might be a ‘conser­vative’ on matters of race relations or civil liberties,” wrote University of Chicago law professor David A. Strauss in a 2005 Chicago Tribune op-ed piece that dismissed the idea that justices change their basic philosophical views.

But a new round of scholarship has revised the thinking and re-energized the debate. It comes against the backdrop of two recent events: the 2004 release of Blackmun’s private papers and the sudden replacement of two justices—including the chief justice—on a court that has sat undisturbed for 11 years, the longest stretch for a nine-member court in its history.

Blackmun, of course, is the species that most ex­perts point to when they debate justices’ philosophical evolution. A Nixon appointee, Blackmun became famous—indeed, infamous—for writing Roe v. Wade and for join­ing renowned liberals William J. Brennan Jr. and Thurgood Marshall in a host of opinions that infuriated conservatives.

“Justices of the Supreme Court are human and I suppose attitudes change as we go along,” Blackmun said.

Blackmun’s papers have given court watchers the opportunity to study the phenomenon up close. “He kept everything,” says Northwestern University law professor Lee Epstein. “It’s really amazing.”

Blackmun may have been at the extreme in how far he traveled, but judicial evolution is commonplace, even expected, says Epstein, co-author of an article to be published this year in Northwestern’s law review.

In fact, says Epstein, ideological drift is the rule rather than the exception. Of the justices appointed since 1937—the rise of the New Deal court—almost all have grown either more liberal or conservative during their tenures. Some have shifted several times.

“Very few have not drifted,” says Epstein. Of the 26 justices over the last 70 years who served for at least 10 terms, only four can be seen to have stuck to their original ideologies.

“What’s interesting is that two that haven’t shifted are on the court now,” she adds, counting Democratic moderate Stephen G. Breyer and Clarence Thomas, a conservative who has stayed that way. The others are FDR ap­pointee Frank Murphy—the liberal version of Thomas—and Eisenhower appointee Potter Stewart.

In addition to the Blackmun trove, Epstein and her co-authors—Andrew D.

Martin of Washington Uni­versi­ty in St. Louis, Kevin M. Quinn of Harvard and Jeffrey A. Segal of Stony Brook University—have mined a huge collection of data tracking public opinion about justices at the time of their appointments, and their subsequent rulings involving civil rights, labor, criminal law, due process and First Amendment issues, among others.

A DRIFT WITH DIRECTION

Acknowledging the celebrated liberal shift, they found that most of those who drifted—a dozen—floated to the left. Many were expected: Blackmun, Brennan, Souter, Stevens, Warren, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O’Connor and Lewis F. Powell Jr., among them.

One was surprising: William H. Rehnquist. That story, the authors say, is more complicated. A solid conservative when first appointed, Rehnquist grew even more so over the first part of his career. But after his 1986 elevation to chief justice, Rehnquist moderated his views, perhaps in recognition of broader job responsibilities.

But justices also can evolve to the right, the authors say. Seven did so, including Frankfurter, White, Hugo L. Black and Antonin Scalia, a conservative who grew more so.

Nor should the rightward tug surprise, Epstein says. “People have short memories. White was the last justice to make a big move to the right over time. But they forget about Frankfurter and Black. There was lots of commentary during the day about those three moving to the right.”

Indeed, in an interview with Black’s biographer, Brennan said of his colleague during the 1960s: “Hugo changed; the man changed right in front of us. It was so evident. … We lost our fifth vote.”

One significant observation is the existence of a freshman syndrome.

Practically all the justices hewed close to their perceived ideologies—and those of their political supporters—for the first term or two. But after a decade, the justices are seen to have wandered all over the map. As justices serve longer, the court is likely to become ever more unpredictable, say the authors.

As for why, Epstein and her co-authors speculate about strategic adaptation, the phenomenon of some justices aligning themselves with the prevailing political tides of the time.

ANCHORED BY EXPERIENCE

Then there’s group dynamics. far from inhabiting nine isolated cages, the justices interact, feed off each other, provoke and annoy each other. Some have postulated that O’Connor’s move toward the center came amid Scalia’s disparagement of her opinions.

In his op-ed, Strauss asserted that “it is the court that has changed, because of new appointees.” The shifting balance would cast some justices as more liberal or conservative by comparison with each other.

For Columbia University law professor Michael C. Dorf, the solution to keeping a Republican justice loyally conservative narrows to this: Nominate people with executive branch experience.

Since Nixon, “those who lack such experience evolve,” Dorf wrote in an article published this spring in the Harvard Law & Policy Review, the journal of the progressive American Constitution Society. “Those who have it do not.”

Dorf ticks off the names. Those with: Chief Justice Warren Burger, Rehnquist, Scalia, Thomas and the newest justices, Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr.; those without: Blackmun, Powell, Stevens, O’Connor, Kennedy and Souter.

Partly, it’s self-selection, says Dorf, a former Kennedy clerk. Lawyers with an ideological compass naturally set a course toward the branch that best effects those values. Specifically, they land in the Justice Department. And they do so at the expense of more lucrative jobs outside government. That, Dorf says, is commitment.

In turn, the phenomenon works as a prescreening mechanism, a job hunt with ready and reliable references. “When it comes time for a Republican president to pick a conservative justice,” says Dorf, “one thing he can do is ask the people who worked around someone with prior executive experience.”

So why even consider an outsider? Well, a president may have more pressing political needs, Dorf says—naming the first woman justice, say, or soothing a restive Congress. The trade-off is getting an unknown.

On the other hand, Strauss says, “when a president appoints a justice in order to push the court in a certain direction, the president almost always gets what he wants.” Those justices only appear to change, he adds, “because the issues move from the ones that the president cared about to new ones that the president didn’t care about or didn’t pay attention to.”

Many expect Alito to keep the conservative creed.

But, Epstein says, “maybe coming from outside D.C. means he’ll change, too.” One thing is for sure, though: “There will be drifting.”