The Drifters

Why the Supreme Court makes justices more liberal

| March 2, 2006

The selection of new justices to replace outgoing ones is highly contentious, with conservative and liberal presidents angling to pack the court with like-minded judges. It may seem cold comfort with today's newly aligned court, but attempts at stacking the court, especially by conservative presidents, have proved difficult in the past. That's because time on the bench, according to Jon D. Hanson and Adam Benforado in Boston Review, tends to spur a general, pervasive, leftward drift among those on it.

Conservatives have bemoaned the appointments of Justices Earl Warren, David Souter, Anthony Kennedy, Sandra Day O'Connor, Harry Blackmun, and John Paul Stevens, among others, because of the justices' slow movement from conservative to moderate or even liberal. Why, when the selection process is so rigorous and the stakes so high, do justices tend to tow toe the line of the president who appointed them only during their first five to 10 years on the court?

'The short answer,' Hanson and Benforado offer, 'is that we are not who we think we are.' By expecting their appointees to remain ideologically moored, presidents fail to recognize that people are strongly shaped by their situation. Since one's situation changes drastically once on the court, one's views may undergo a similarly drastic shift. Not all appointees have spent their entire careers judging; some have spent time representing narrow special interests, and so their paper trail will be skewed in one particular direction. Lifetime appointment to the court frees justices from the need to cater to such interests, and this can result in a more moderate perspective on law than previous work indicated.

Inherent in the process of judging, as opposed to advocacy work, is the need to appear neutral, to see all sides of the argument. The constant push to develop complex understandings of contentious cases, the writers argue, 'nudges judges' to the left. Referencing social psychologist John Jost, the writers claim that people who need closure while fearing ambiguity tend to embrace narrow, clearly defined philosophies, a.k.a. conservatism. The complexity of perspective the court inculcates in justices is antithetical to such a world-view, and so the more the justices come to embrace ambiguity and varied perspectives, the further left they drift.

'[G]irded against the potentially overwhelming influence of the majority,' the Supreme Court is an institution that breeds fierce ideological and intellectual independence in its justices. While this independence is not complete -- due to the influence of Congress, public perception, and think tanks -- it is intact nonetheless, and history shows it creeping to the left.
-- Nick Rose

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