[Mb-civic] Changing Room - Washington Post

[William Swiggard]

Changing Room
The Court's Dynamics Have a Way of Altering a Justice's Approach to the Law

By Lee Epstein and Jeffrey A. Segal
Sunday, November 20, 2005; Page B01

Short of a major scandal or a serious blunder during his confirmation 
proceedings, federal appellate judge Samuel Alito will take his place on 
the Supreme Court. What kind of justice will he be? If media reports are 
to be believed, he is likely to support abortion restrictions, if not 
the reversal of Roe v. Wade , and to join Justices Antonin Scalia and 
Clarence Thomas in efforts to end affirmative action plans, dismantle 
the wall of separation between church and state, expand states' rights 
and limit Congress's ability to regulate under the Constitution's 
commerce clause.

In short, even before Judge Alito becomes Justice Alito, pundits have 
branded him as ideological rather than independent-minded; they also 
believe they know how he will vote on a range of legal, cultural and 
economic issues.

But are they right? If recent history is any indication, the answer is 
"Yes, but . . ."

The "yes" comes from our research comparing the ideological labels 
assigned by commentators to Supreme Court nominees with their voting 
records on the court. As it turns out, those labels often convey useful 
information about how nominees, upon ascending to the high court, 
approach the cases before them. At the time of Scalia's nomination in 
1986, virtually all the commentary -- on the left and the right -- 
predicted that he would be quite conservative. That forecast proved 
accurate. Scalia now reaches right-of-center decisionsin almost seven 
out of every 10 cases he considers. Likewise, Ruth Bader Ginsburg, 
assessed as moderate-to-liberal when she was picked in 1993, votes 
precisely as that label would suggest, reaching liberal outcomes in 
about two-thirds of the court's cases.

So, yes, Samuel Alito, in all likelihood, will be a conservative justice 
and will reach decisions in accord with that label. But there's a "but" 
-- actually several, all recent or current justices: David Souter, Harry 
Blackmun, John Paul Stevens, Anthony Kennedy and Sandra Day O'Connor, to 
name five justices for whom, to greater or lesser extent, ideological 
labels proved misleading. The "but" offers important insights into why 
some nominees, once they become justices, sometimes don't behave as 
predicted and how the court's dynamics can affect their views.

In the case of Souter, initial judgments about how he might vote were 
downright wrong. The clear expectation, based largely on his lower court 
record, was that Souter would be a rather consistent conservative voter 
-- even more to the right than Reagan appointees Kennedy and O'Connor, 
at the time of their nominations. Souter, of course, is a rather 
consistent voter -- on the court's liberal wing.

In retrospect, we probably should not be surprised by this turn of 
events. Lower court records can actually provide disinformation about a 
nominee's true preferences. Judges on lower courts, after all, are bound 
by Supreme Court precedent, and that constraint may explain why Souter 
-- thought to be moderately conservative as a state and federal 
appellate court judge -- emerged as liberal once on the high court. The 
Supreme Court that Judge Souter was bound to follow was somewhat 
conservative or, at least to the right of Souter's actual preferences. 
While Supreme Court nominees "respect" precedent, as they unfailingly 
tell the Senate Judiciary Committee, once elevated they are not 
compelled to follow it. Freed from that constraint, the "real" Souter 
came into view.

Even when commentators correctly anticipate a justice's political 
leanings, time can wreak havoc with any predictions we might make on the 
basis of a nominee's presumed political values. As the years wear on, 
new issues will test the strength and breadth of those commitments. When 
President Ronald Reagan appointed Anthony Kennedy in 1987, criminal law 
was a far more salient political matter to the president than, say, gay 
rights. Nonetheless, it was Kennedy who (16 years later) wrote the 
opinion striking down a Texas law that prohibited same-sex sodomy -- an 
opinion that belied his generally moderately conservative approach to 
judging, not to mention one that the very conservative Reagan would 
likely have condemned. We might make educated guesses as to Alito's 
views on abortion and states' rights, but what about genetic 
fingerprinting and stem cell research?

The passage of time also enables even hard-core liberals or 
conservatives to rethink their jurisprudence. Witness Harry Blackmun, 
who served from 1970 to 1994. Early in his tenure, he joined the other 
three conservative appointees of President Richard Nixon to uphold the 
death penalty. But just before he retired, Blackmun declared that "no 
sentence of death may be constitutionally imposed" and that "from this 
day forward" he "no longer shall tinker with the machinery of death." 
John Paul Stevens, too, has become increasingly liberal with each 
passing administration, while Byron White (who served from 1962 to 1993) 
became more and more conservative.

Then there's O'Connor, the swing justice during her last few terms on 
the court. Over time, this moderate-to-conservative Reagan appointee 
grew more liberal -- and with that movement came a change in her voting 
behavior. So, based on our calculations, the odds of the court upholding 
an affirmative action program just 10 years ago were no more than one 
out of three; but by the time the court heard a challenge to the 
University of Michigan law school's affirmative action plan in its 2002 
term, the odds had increased to more than 50 percent -- largely because 
of O'Connor's move to the left. In the end, O'Connor did provide the key 
vote to uphold the law school's program (while also joining the 6-3 
majority in striking down a different affirmative action plan governing 
Michigan's undergraduate admissions).

New issues and a rethinking of old ideological commitments may well have 
conspired to make O'Connor's voting less predictably conservative. But 
so too, in all likelihood, did the nature of her job.

Branding nominees as "conservative," "liberal" or something in between, 
with the expectation that those nominees will act reflexively in 
accordance with those labels, ignores the nature of judging. While 
O'Connor's preferences may have grown more liberal over time, it is 
equally likely that her vote in the Michigan law school case reflected 
her belief in the value of making changes incrementally. The lesson here 
is that Alito will be more likely to chip away at abortion rights and 
affirmative action practices than to vote to overrule them immediately. 
Limiting -- even severely limiting -- case law is one thing; overturning 
well-entrenched precedents is quite another.

Then there is the matter of internal dynamics on the court. Despite the 
size of its building, the court is a small office -- with all the 
attendant politics of a small office. If we believe that most members of 
this office, the justices, hope to move the law in ways that reflect 
their own ideological commitments, then they engage in ideological 
fanaticism to their own peril. To produce a decision with the force of 
precedent, a majority must subscribe to the opinion's rationale. Unless 
five of the justices are quite conservative or quite liberal, extremism 
can cost votes, depriving the opinion author of a majority. In seeking 
to overturn Roe , Chief Justice William Rehnquist overplayed his hand, 
losing O'Connor's crucial vote in the process. The extremely 
conservative nature of Scalia's views, to say nothing of his 
take-no-prisoners style, may have needlessly antagonized potential allies.

Extremist justices can miss opportunities to pull the law toward their 
preferences in more subtle ways as well. By custom, the senior justice 
voting with the majority (or the chief justice, if he is part of the 
majority) is responsible for choosing someone to write the majority 
opinion. In closely divided cases, the justice assigning the opinion may 
be less inclined to ask an extremist to write out of fear that his or 
her majority may dwindle to a minority. This may well explain why 
Stevens assigned the Michigan law school case to the most moderate (and 
fragile) member of the majority, O'Connor, and not to the far more 
liberal Ginsburg. It also may explain why O'Connor has seemingly 
relished and indeed maintained her place as a key player on the court. 
Like Lewis Powell before her, she seemed to recognize that moderation -- 
perhaps even modulation -- can work to the advantage of a policy-minded 
justice.

Where does this leave us with Judge, likely-to-be Justice, Alito? 
History provides little reason to question predictions that Alito will 
cast right-of-center votes, and reliably right-of-center votes at that. 
On the other hand, if that same history is any indication, even his 
thick judicial record may provide less insight into his future votes 
than we might imagine.

Moreover, neither Alito nor anyone else can know whether his current 
conservative leanings are a reliable indicator of how he might vote 20 
or even 30 years from now, when he'll be just three weeks older than the 
moderate-turned-liberal Justice Stevens is today.

Nor can Alito or anyone else predict the political composition of future 
Supreme Courts. If Alito wins confirmation, he and new chief justice 
John Roberts would give the conservative faction a firmer basis for 
forming a majority on many issues, but it is still by no means a 
guaranteed majority. A Democratic president could alter the balance 
again. But if a nimble and tactful Alito can adapt to whatever changes 
the future may hold, he may well emerge as the liberals' worst 
nightmare: an effective Scalia.

http://www.washingtonpost.com/wp-dyn/content/article/2005/11/18/AR2005111801873.html
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