The Drifters

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
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

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

Go there >>

Related Links:

Related Links from the Utne

Comments? Story tips?
Write a letter to the editor

Like this? Want more?Subscribe to Utne

In-depth coverage of eye-opening issues that affect your life.