May 21, 2007

posted by Daniel J. Solove

Also, of course, the court _has_ shifted massively to the right since 1969, so I don't really see that Kerr isn't just agreeing without, perhaps, noticing it.

Matt, what's your evidence for that? If you compare area by area, I think you get a lot of basic similarities, albeit with some ares of difference. And a number of areas of difference have today's court in a more liberal position than the court of 1969 (abortion, gay rights, etc.). Are you sure there has been a massive shift to the right since 1969? What do you have in mind?

Dan, I think you're wrong about the history. 1969 wasn't an innocent age that predated legal realism. Richard Nixon ran on the issue of the Courts, and pledged to appoint conservatives who would overturn the warren court decisions. And while you say that ideological surprises are no more, didn't Bush nominate Harriett Miers?

Orin -- Nixon was far less conservative than the Republicans of today; had Nixon made his appointments in 2007, I doubt he would have done it in the same way. Miers was quickly attacked and shot down for a more reliably-conservative appointee. She was attacked for lacking the right qualification as well as by those who often referred to Souter and other Republican appointments that turned out to be surprises.

I'm not claiming that 1969 predated legal realism, but that the appointments process was far less partisan and ideological at that time. Although Nixon wanted to reverse the Court's direction, it really wasn't until Reagan when there was a big push to radically change the Court's ideology. This was due to Roe v. Wade, when getting the Court to shift to the right became a much more fervent political issue.

Dan,

Nixon was less conservative, but I don't think he had such a different view as compared to Reagan, Bush, etc. about what kind of Justice he wanted to appoint. Nixon's first nomination was Burger, who was known as an outspoken conservative and opponent of the D.C. Circuit's liberals. For the next opening he tried Haynesworth, who was rejected as too conservative; he then tried Carswell, who was even more conservative, who was also rejected. Nixon only settled on Blackmun (thought at the time to be another Burger) after those two other nominations failed and he needed a moderate who could be confirmed -- his nomination was a lot like Kennedy's 15 years later. Powell and Rehnquist were introduced together to try to have them come off as a package deal, with the thinking (in part) that Powell's being a moderate would help Rehnquist get confirmed. That's how I understand the history, at least.

Orin,
I'd have to get a book out to look up dates (something I don't have time to do) to make sure I have all the right cases in mind, but do you _really_ think there's not be a quite large shift to the right on, say, equal protection cases? If you read Brennan/Marshal decisions as opposed to Rhenquist/O'Connor decision in this area can you really say you don't see a very large shift to the right? It would be shocking to me to not see this.

Matt,

I look forward to when you get out the books and get the right cases in mind. The key is too look at all of the main areas of federal law -- not just one area, like equal protection as it applies to racial distinctions -- and to compare their rough political orientation. So, for example, within the equal protection arena you would need to include equal protection as it applies to gender, comparing the law in 1969 to today. (I'm curious, do you think the law of equal protection as it applies to gender distinctions has made an enormous turn to the right in that area? I would be fascinated to learn why.) I think you'll find that the evidence is really quite mixed.

Orin--

The problem with the task you set for Matt is that it stacks the deck. In many (perhaps most) of the areas in which the Court has moved "left" since 1969, the nation has moved "left" at a much sharper clip, continuing a two centuries long trend towards including a greater diversity of Americans in our national community. Gender equal protection cases are a perfect example, as are the rights of gays and lesbians. At least where it comes to individual rights, the point of comparison ought not be what an area of law looked like in 1969, but where the Court is in comparison with the center of public opinion or perhaps what the law would have looked like if similarly left of mainstream Justices had been appointed in the intervening decades. In areas where evolving American values are less relevant (say statutory interpretation or private right of action or, though I defer to your expertise here, the 4th Amendment), the Court has not only moved to the right in comparison to the American people but also moved to the right in comparison to the status quo ante.

Its worth noting that Nixon faced a far different type of Court than his successors. The issue of the Court was important in 1968, and important in the same manner it has been in recent elections, with Nixon running against Earl Warren as much as Humphrey. But the goal then was not to create a Court that would impose a conservative gloss on constitutional law. Rather, Nixon's goal was more modest - to stem the tide of the imposition of perceived radicalism being imposed on Constitution by the liberal wing of the 60's Court. This tide could be held back as much, or even more so, by a moderate (think of O'Connor as a later example of a moderate coalition builder) versus a conservative (think of Clarence Thomas as a modern non-coalition builder).

Today's Court is different. The liberals are liberals, but not radicals prepared to openly spurn the language of the Constitution. The conservative are conservative, but with a bent towards reading the Constitution as written, not ignoring the text and imposing political conservatism upon it regardless. In other words, no one talks about, as Thurgood Marshall did, "voting the way they feel." That is remarkably important. To wit, the most radical decision of recent times - Kelo - while wrongly decided, was fought out based on perceptions of the text and understanding of the document, not the wants and desires of the members. Its unlikely that Justice Souter wakes up in the morning and says "I'm really glad I reduced the rights of landowners. I have improved America."

Thus, the next election is certainly important for the Supreme Court - all Presidential elections are important for the Supreme Court at the time of the election - but for reasons different than those posited. Its unlikely we're facing an age of judicial radicalism again - certainly there is no hue and cry for Brennan and Marshall, even among Democrats - but rather an age in which, at "worst" we have a Court faithful to the text of the Constitution, whose decisions then can largely be amelirated through the political process, or otherwise we'll have the mushy, middle-of-the-road, 4-part test moderatism we've gotten along OK with (with some notable exceptions) for 30 years.

Its worth noting that Nixon faced a far different type of Court than his successors. The issue of the Court was important in 1968, and important in the same manner it has been in recent elections, with Nixon running against Earl Warren as much as Humphrey. But the goal then was not to create a Court that would impose a conservative gloss on constitutional law. Rather, Nixon's goal was more modest - to stem the tide of the imposition of perceived radicalism being imposed on Constitution by the liberal wing of the 60's Court. This tide could be held back as much, or even more so, by a moderate (think of O'Connor as a later example of a moderate coalition builder) versus a conservative (think of Clarence Thomas as a modern non-coalition builder).

Today's Court is different. The liberals are liberals, but not radicals prepared to openly spurn the language of the Constitution. The conservative are conservative, but with a bent towards reading the Constitution as written, not ignoring the text and imposing political conservatism upon it regardless. In other words, no one talks about, as Thurgood Marshall did, "voting the way they feel." That is remarkably important. To wit, the most radical decision of recent times - Kelo - while wrongly decided, was fought out based on perceptions of the text and understanding of the document, not the wants and desires of the members. Its unlikely that Justice Souter wakes up in the morning and says "I'm really glad I reduced the rights of landowners. I have improved America."

Thus, the next election is certainly important for the Supreme Court - all Presidential elections are important for the Supreme Court at the time of the election - but for reasons different than those posited. Its unlikely we're facing an age of judicial radicalism again - certainly there is no hue and cry for Brennan and Marshall, even among Democrats - but rather an age in which, at "worst" we have a Court faithful to the text of the Constitution, whose decisions then can largely be amelirated through the political process, or otherwise we'll have the mushy, middle-of-the-road, 4-part test moderatism we've gotten along OK with (with some notable exceptions) for 30 years.

Its worth noting that Nixon faced a far different type of Court than his successors. The issue of the Court was important in 1968, and important in the same manner it has been in recent elections, with Nixon running against Earl Warren as much as Humphrey. But the goal then was not to create a Court that would impose a conservative gloss on constitutional law. Rather, Nixon's goal was more modest - to stem the tide of the imposition of perceived radicalism being imposed on Constitution by the liberal wing of the 60's Court. This tide could be held back as much, or even more so, by a moderate (think of O'Connor as a later example of a moderate coalition builder) versus a conservative (think of Clarence Thomas as a modern non-coalition builder).

Today's Court is different. The liberals are liberals, but not radicals prepared to openly spurn the language of the Constitution. The conservative are conservative, but with a bent towards reading the Constitution as written, not ignoring the text and imposing political conservatism upon it regardless. In other words, no one talks about, as Thurgood Marshall did, "voting the way they feel." That is remarkably important. To wit, the most radical decision of recent times - Kelo - while wrongly decided, was fought out based on perceptions of the text and understanding of the document, not the wants and desires of the members. Its unlikely that Justice Souter wakes up in the morning and says "I'm really glad I reduced the rights of landowners. I have improved America."

Thus, the next election is certainly important for the Supreme Court - all Presidential elections are important for the Supreme Court at the time of the election - but for reasons different than those posited. Its unlikely we're facing an age of judicial radicalism again - certainly there is no hue and cry for Brennan and Marshall, even among Democrats - but rather an age in which, at "worst" we have a Court faithful to the text of the Constitution, whose decisions then can largely be amelirated through the political process, or otherwise we'll have the mushy, middle-of-the-road, 4-part test moderatism we've gotten along OK with (with some notable exceptions) for 30 years.

Its worth noting that Nixon faced a far different type of Court than his successors. The issue of the Court was important in 1968, and important in the same manner it has been in recent elections, with Nixon running against Earl Warren as much as Humphrey. But the goal then was not to create a Court that would impose a conservative gloss on constitutional law. Rather, Nixon's goal was more modest - to stem the tide of the imposition of perceived radicalism being imposed on Constitution by the liberal wing of the 60's Court. This tide could be held back as much, or even more so, by a moderate (think of O'Connor as a later example of a moderate coalition builder) versus a conservative (think of Clarence Thomas as a modern non-coalition builder).

Today's Court is different. The liberals are liberals, but not radicals prepared to openly spurn the language of the Constitution. The conservative are conservative, but with a bent towards reading the Constitution as written, not ignoring the text and imposing political conservatism upon it regardless. In other words, no one talks about, as Thurgood Marshall did, "voting the way they feel." That is remarkably important. To wit, the most radical decision of recent times - Kelo - while wrongly decided, was fought out based on perceptions of the text and understanding of the document, not the wants and desires of the members. Its unlikely that Justice Souter wakes up in the morning and says "I'm really glad I reduced the rights of landowners. I have improved America."

Thus, the next election is certainly important for the Supreme Court - all Presidential elections are important for the Supreme Court at the time of the election - but for reasons different than those posited. Its unlikely we're facing an age of judicial radicalism again - certainly there is no hue and cry for Brennan and Marshall, even among Democrats - but rather an age in which, at "worst" we have a Court faithful to the text of the Constitution, whose decisions then can largely be amelirated through the political process, or otherwise we'll have the mushy, middle-of-the-road, 4-part test moderatism we've gotten along OK with (with some notable exceptions) for 30 years.

Please excuse my accidental posting of my post too many times - blame the computer - and kill all the extras. Thanks.

Andrew,

That's a rather odd way to measure if the law has moved to the right or the left. So, for example, when American politics shifted strongly to the right in the 1980s, I gather your view would be that the Supreme Court actually shifted dramatically to the left? I assume you think Robert Bork should have been confirmed just to keep the Supreme Court centrist?

The interesting wrinkle is that the importance of the makeup of the Court is not equal based on whether one is on the right or the left. While those on the left certainly do not feel this way, the makeup of the Supreme Court should almost always be more important to a legal conservative than a liberal. That is because to the extent a Court is "too" conservative, it is engaging in a "too" strict reading of the Constitution, and leaving the granting of desired rights to the political process, rather than to the Judiciary. In contrast, when a court is "too" liberal, it is reading rights and values directly into the fabric of the Constitution, closing off the political process from the allocation of rights. In the former case, liberals may lose the Court but retain recourse to the political process for their grievances; in the latter case, conservatives lose both the Court and the political process. Thus, the direction of the Court is (or at least ought to be) more important to a conservative than a liberal.

what Mr. Abeles (above) said...

Scott,

Isn't this much too simplistic? For example, what do you make of areas like affirmative action, campaign finance, takings, 11th Amendment, and 2nd Amendment law, where "conservatives" generally want the constitution to be read to close off or narrow the political process and "liberals" generally want the constitution to leave issues to the political branches?

Orin - Respectfully, it is too simplistic only if read too simplisticly. I will grant you the 11th Amendment, where the Rehnquist Court -- thanks, largely, to Rehnquist -- ignored the text and overread State's rights from a Strict Constructionist's point of view. That is why I refer to a "conservative court" rather than any particularly conservative-minded Judge, each of whom tends to reveal his or her political humanity from time to time (See Bush v. Gore, a non-conservative decision rendered by Judges otherwise generally deemed conservative).

However, I do not agree that the other points you've raised undercut my point. Certainly, the political process is unavilable where the desired law directly transgresses the Constitution's text. So where campaign finance violates the plain text of the First Amendment, gun control the Second, affirmative action the Fifth or Fourteenth, and a land use ordinance the Takings Clause, the conservative court rightly strikes it. But that does not undercut my point, because my point was not that conservative courts do not strike laws but liberal courts do.

Rather, each example raised posits a law restricting a right (not granting a right) - to free speech, to carry guns, to equal protection, to property - that is textually protected by the Constitution. The Constitution itself therefore closes off political debate regarding these right, and the conservative faithfully upholds the text. This is distinct from the reading in to the document of unnenumerated rights - such as privacy, liberty of contract, welfare, free education, interesting recreational activities, and the like. Once read in, the political process cannot operate - not because of what the Constitution says - but because of the political values of a given set of Judges.

Tying back into my post, then, the citizen who finds himself facing a conservatively tilted Court properly expects that his textual rights will be protected, and his other, unnenumerated wants and desires (short of violating others' constituional rights, of course) are available, assuming the votes, in the political process. The same citizen can rightfully fear, with a leftward tilt, that his enumerated rights are up for grabs (threatened, for example, by cases like those you cite) and that his other, unnenumerated desires are unavailable because their converse has been read into the Document. Thus the conservative continues to have more to lose.

Orin,
I am not quite sure why you think Miers was an ideological suprise? Yes, she wasn't on anyone's list of "who's who" among potential conservatives to be appointed to the Supreme Court, but whether her rulings would be idelogically surprising, i.e. different than what Bush II had in mind is a distinct question - don't you think?

Orin/Dan,
More generally, as for the ideological drift of the Supreme Court since Warren retired in 1969, I think any such discussion needs (as Orin implies) a much more nuanced discussion beyond "conservative" and "liberal" labels. I for one am not entirely sure what makes a jurist conservative - is it his/her "narrow" view of substantive due process, or a strong state's rights mantra, or a view that the Warren Court's expansion of constitutional criminal protections was unwarranted, or generally a lessening of the Court's role in society, or is it because he/she has a particular approach to constitutional and statutory interpretation, or is it favoring certain legal sources over others for the purpose of interpreting the Constitution, or is it based on the level of deference shown to the co-ordinate branches of government? Orin suggests that looking across different areas of federal law we would get a mixed message - that's probably true - but that's because we lack a single definition of what makes a justice (or politician for that matter) conservative. Start with a defintion (or characterization) of what you think makes a justice conservative (i.e., what type of voting pattern) and then one can better assess whether the Court (and federal/constitutional law) has in fact moved rightward from where it was at the end of the Warren court.

If I had to suggest a starting place, the difference between the state of federal/constitutional law at the end of the Rehnquist Court verus at the end of Warren's era, is the reluctance of the Rehnquist Court to constitutionalize issues as frequently as the Warren Court. To me that is an arguable
"conservative" shift because it diminishes the Court's power while assuring that the other branches of the federal government, as well as the States, retain a greater (if not primary) role in the decisionmaking process of what rights and remedies individuals ought to have.

It might be too late to the comment thread, but here goes:

It seems like there are two different issues at work here. One issue is to what effect new Supreme Court Justices would have on stare decisis. Another issue is to what effect new Supreme Court Justices would have on current controversies in federal jurisprudence.

As Dickerson v. US shows, stare decisis has enveloped much of the Warren Court jurisprudence. Mr. Goldstein's original claim that a new batch of conservative appointees "could genuinely undo the jurisprudence of the Warren Court" is at best unlikely.

The bigger question comes with the Burger Court's jurisprudence. For example, Roe, Buckley, Bakke and their progenies still generate major controversies around their central holdings. It is conceivable that adding more conservative appointees over the next 8-12 years could drastically shift these jurisprudential areas.

As for the issue of the "ideological surprise," one of the more important factors to keep in mind regarding Supreme Court nominations is that there are often ephemeral political considerations shaping the given political landscape in which the nomination is made. Another key factor is that a given President may have certain personality traits that can lead to unorthodox selections. The choice of Harriet Miers can be seen as arising from both factors. A central ephemeral political consideration was to choose a woman; the inclination of President Bush to feel most comfortable with those whom he knows the best personally (as opposed to those who might be most qualified) helped him pick Miers over other women. Thus, idiosyncracies emerge.

One of the key differences now that has led to fewer idiosyncracies is the mobilization of interest groups who keep in mind the long-term need for proven "strict constructionists." (Whether that term means anything jurisprudentially is, for the purposes of this discussion, irrelevant, since Supreme Court Justice confirmation hearings are political in nature.) Such interest groups, and the Senators who need and want to pay attention to their needs and wants, will likely serve as a more effective restraint on the ephemera and idiosyncracies. An "ideological surprise" can be nominated, but it is more and more unlikely for such a nominee to be confirmed.