In a more serious vein, I heard one pundit reel off a list of other justices previously nominated with the expectation they would be conservative who later moderated their judicial philosophy to become more liberal. Roberts was a Bush nominee, but his father Bush I, nominated Justice Souter who became persona non grata in the eyes of this Chief Justice. And now the NY Daily news wonders "Is Chief Justice John Roberts the new David Souter?"
Retired Justice John Paul Stevens, who was in the courtroom Thursday, was a Gerald Ford nominee whose philosophy underwent a change when he got to the Supreme Court.
On the Seventh Circuit Court of Appeals, John Paul Stevens had a moderately conservative record. Early in his tenure on the Supreme Court, Stevens had a relatively moderate voting record. He voted to reinstate capital punishment in the United States and opposed race-based admissions programs such as the program at issue in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). But on the more conservative Rehnquist Court, Stevens joined the more liberal Justices on issues such as abortion rights, gay rights and federalism. His Segal�Cover score, a measure of the perceived liberalism/conservatism of Court members when they joined the Court, places him squarely in the ideological center of the Court. However, a 2003 statistical analysis of Supreme Court voting patterns found Stevens the most liberal member of the Court.
Today's Tea Party extremists are not far removed from the McCarthy Era super-patriots. The civil rights struggle has changed form, with bigotry expressed more politely with separate but equal replaced by vouchers and school choice. Those of us who recall the "Impeach Earl Warren" billboards know how to interpret today's dog whistles.
And Borowitz' delightful recapitulation of Roberts as a proxy President Obama as the embodiment of all that is evil -- politically, philosophically, socially and any other way you want to see it -- could not have been more eloquent. Our politics has deteriorated to the point that it's up to comedians to explain it. In years to come the footnotes of history will include the names of late-night comics and TV pundits like Jon Stewart and Steven Colbert.
This turned up in a search...
Does American Law Have a Liberal Bias?
One factor that undoubtedly plays a role in judicial drift over time is experience. Justices Powell, Blackmun, and Stevens each pointed to the years of death penalty cases in which they participated as crucial factors in their loss of faith in the system of capital punishment. Exposed in detail, and repeatedly, to a broken system, they eventually questioned the premises on which their earlier votes had been based.
That experience may explain drift on the death penalty but it is not a general explanation for leftward drift. One could, after all, describe a Justice who became more conservative on some issue as responding to negative experience with some liberal doctrine�affirmative action, say. Judicial experience no doubt shapes the views of long-serving judges, but not necessarily in a liberal direction.
In the end, I would offer the following provocative suggestion: More often than not, Justices drift left because American constitutional law itself has a "liberal bias." The judicial process calls for the evenhanded application of principles. Yet as Justice Benjamin Nathan Cardozo wrote (when he was a judge on New York's highest court) in his book The Nature of the Judicial Process, a legal principle has a "tendency . . . to expand itself to the limit of its logic." A Supreme Court Justice who wants to deny the expansion of rights under open-ended constitutional provisions such as the First, Fifth, and Fourteenth Amendments will find himself or herself struggling against the natural pull of the job.
To be sure, there are materials available for a Justice who does want to engage in that struggle, and sees himself or herself as holding the line against rights-expansion. Cardozo himself recognized that the tendency of a legal principle to expand can be "counteracted by the tendency to confine itself within the limits of its history." To use more contemporary language, judges who seek narrower interpretations of legal principles may come to see the relevant texts as not expressing principles at all, but only as expressing narrow historical compromises. This view goes under the name of "textualism" in statutory interpretation, and "originalism" in constitutional law (although recent years have witnessed a proliferation of views that claim to be "originalist").
Accordingly, self-styled textualists and originalists (like Justices Scalia and Thomas) can resist the progressive pull of principle that Cardozo identified, but only at the cost of endorsing a view that seems ill-fitted to the materials at hand: The most hotly- contested provisions of the Bill of Rights and the Fourteenth Amendment certainly look more like they are speaking the language of broad legal principle than that of narrow historical compromise.
Does the resulting "liberal bias" of American law ensure that all or even most Justices will drift leftward over their careers? Of course not. My hypothesis remains unproved and even if true, it will only count as one factor in explaining the behavior of any Justice over the course of her career. Moreover, a determined conservative President can find Justices who will withstand the pull of liberal principle.
Nonetheless, and even with all of the foregoing caveats, liberals have grounds for cautious optimism (and conservatives have grounds for moderate pessimism) that a reasonably open-minded Justice who accepts the duty to apply legal principles will end up more liberal than he or she started. Just don't expect President Obama's next nominee to admit that.
That was posted two years ago by Cornell Professor Michael C. Dorf. Curious about any response he might have had to Thursday's decision I found his blog home. Sure enough, like most lawyers, he has plenty to say. So much, in fact, that I decided not to wade through it all. Readers are welcome to drill into the links for themselves. This bit jumped off the page at me.
I am sure that there will be much speculation about whether Roberts voted as he did to preserve his legacy or to prevent the Court from being perceived as a purely political institution, but I don't buy it. If the Chief had gone the other way, all of the attention/blame for the result would have focused on Justice Kennedy. Moreover, although the Chief cares about the legitimacy of the Court, it's easy for liberals like me and most of my readers to forget that, given the unpopularity of the mandate, a decision the other way would not have much damaged the Court's legitimacy. I think that CJ Roberts was simply led by the ineluctable logic of the anti-formalist argument that labels don't matter.
I have been saying some variation of the following since the oral argument: "When I started as a constitutional lawyer, I was about 70% legal realist. I thought that in the ideologically identifiable cases in the Supreme Court, law accounted for roughly 30% of the outcomes one saw. After Bush v. Gore, I was at 99-1. That last one percent is on the line in the ACA case." Now thanks to John Roberts, I'm back to 30%.
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Though I am essentially Liberal, I approach legal commentary with the same conservatism that I do drinking. Too much will make you drunk. I'll take my wine slowly along with the meal, hard liquor in moderation one drink at a time, and beer by the glass. Pitchers of beer, like spiked punch, make me hesitant to join the crowd. Like lawyers in an argument, they often get more involved with drinking than clear thinking.
(It's also one of the pitfalls of broadcast journalism, incidentally, which conflates rhetoric and performance with sensible arguments and art.)
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