Monday, August 08, 2005

'Defect', 'Evolve', or None-of-the-above...

Really good article last week by Dahlia Lithwick over at Slate. (If you are not familiar with Ms. Lithwick, she is one of the real must-read legal commentators out there, writing the Supreme Court Dispatch for Slate. She infuses her writing with a lot of humor and irreverance, which isn't the most common thing when you're writing about the hallowed Supreme Court.)

The article is entitled The Souter Factor: What makes tough conservative justices go soft?

Lithwick explores the "much-whispered hope of liberals, and much-shouted anxiety of conservatives" - will a Justice float to the left while on the bench. She proffers 5 theories as to why some justices tend to move leftward in their time on the bench:

1. The Greenhouse Effect "The Greenhouse Effect" is the name of a phenomenon popularized by D.C. Appeals Court Judge Laurence Silberman referring to federal judges whose rulings are guided solely by their need for adulation from legal reporters such as Linda Greenhouse of the New York Times. The idea is that once confirmed, justices become desperate to be invited to the right cocktail parties and conform their views to those of the liberal intelligentsia. ...

The problem with this theory is that it accepts a great conservative fiction: that there is vast, hegemonic liberal control over the media and academia. This may have been somewhat true once, but it's patently untrue today. Jurists desperate for sweet media love can hop into bed with the Limbaugh/Coulter/FOX News crowd. Clarence Thomas has made a career of it. There is a significant and powerful conservative presence in the media, inside the Beltway, and in academia. And my own guess is that Federalist cocktail parties in D.C. are vastly more fun than their no-smoking/vegan/no-topless-dancing counterparts on the left.

2. Mean ol' Nino This theory holds generally that justices tweak their philosophies and ideologies in response to each other; and specifically, that Antonin Scalia and (to a lesser degree) Clarence Thomas have managed to drive once stalwart conservatives into the arms of the court's lefties.

3. "Seeing the Light" This theory, a favorite of liberals, hinges on the claim that jurists eventually drift leftward because they become increasingly compassionate/sensitive/wise with age, and that each of these values is a fundamentally liberal one. ...

The problem with this notion—that judges begin to appreciate the intrinsic rightness of tolerance, pluralism, and acceptance—is that it flies in the face of a basic human truth: We almost all become more conservative with age. This theory also fails to explain why some jurists—notably Scalia and Thomas and, to a great extent, Rehnquist—fail to budge from their ideological positions over the years. While it may feel good for liberals to assert that the drift to the left is simply a sign of wisdom, it strikes me as too simple and self-serving to be accurate.

4. The Boys in the Bubble The argument is that [a Justice has] so little "real-life" experience prior to [their] confirmation that [they] only developed [their] jurisprudential views after donning the black robe. [Justice] Souter himself has said that when he was confirmed he knew next to nothing about important federal constitutional issues—having had experience as a state attorney general and then as a state supreme court justice. ... Because judges often hail from Ivy League institutions or from the lower courts, they may be less likely to have fully formed political ideologies.

5. The Law Is a Moderate Mistress This theory holds that there is something inherently moderating about the law itself; that the traditions and pace of the legal system tend to foster centrism and moderation. The "drifters" of the Supreme Court world—the Kennedys and O'Connors—are not so much evolving toward the left, therefore, as they are evolving toward the center.

I think this article in total is quite good...but I would tend to disagree with the assumed theme - that the Court has moved to the left, and that Justices such as O'Connor, Kennedy, and Souter have become liberals - which, in my opinion, is simply not correct. Lithwick herself points out that for all the right-wing hand-wringing about Souter, there hasn't been the same outcry or call for impeachment from the left related to Justice Breyer, whom was expected to be a solidly left voice on the Court, but has turned out to be a genuine moderate:
... Stephen Breyer has similarly moved rightward, proving to be the swing vote in this term's blockbuster case allowing displays of the Ten Commandments on state grounds, and joining the court's conservatives in matters as vital as the presidential power to detain enemies in wartime. We don't hear much from the media about Breyer's occasional defections to the conservative team, and certainly liberal pundits don't call for his impeachment the way Phyllis Schlafly does each time Justice Kennedy strays from the reservation.

The problem, I think, is the simplistic thought that decisions at the Supreme Court level have a left and right side; or a liberal or conservative side. They simply do not. In reality, these decisions are questions of law, and such questions will have different people wind up at different places - generally due to their judicial philosophy, but those decisions have very little in common with political left and right landscape.

For example, in this past term's Raich decision - what was conservative, and what was liberal? Was it conservative maintain a strong national anti-drug policy; or was it conservative to argue for a state's right to legalize drugs? Was it liberal to argue that the federal government trumped a state decision; or was it liberal to argue for the legalization of a prohibited drug? The Court can't be put into those boxes. On such a level, it is far more complex than those labels.

1 comment:

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