The Phenomenon of Liberal Drift

To the pleasant surprise (and relief) of many liberals, and the endless frustration of conservatives, conservative Supreme Court Justices have a well-documented tendency to depart from the opinions of their colleagues in the political branches of government, often becoming increasingly liberal in their judicial philosophy as time goes by. We are all by now familiar with the leftward drift of Justices Souter, Kennedy, and O'Connor, all of whom were appointed by Republican presidents, but have often sided with the so-called liberal bloc of Stevens, Ginsburg, and Breyer (indeed, the most consistent liberal on the Court, Stevens, was himself appointed by a Republican president). Interestingly, however, there are virtually no examples of the reverse phenomenon: liberal judges becoming more conservative. Conservative commentators have offered various explanations for this phenomenon over the years. Some have attributed it to bad luck. Others have suggested that Justices are so insulated that they eventually lose touch with their conservative roots and become increasingly influenced by the opinions of the liberal elite in Washington. Neither of these explanations is very convincing.

Let me offer an alternate explanation.

Before I do, though, let me make a more obvious point: judges are not politicians. They think differently, react to public pressures differently, and make decisions based on different criteria (e.g. what the law says). For instance, many conservatives were dismayed that the Court unanimously (and more than once) refused to intervene in the Terri Schiavo case. The Schiavo case was the perfect of example a cause that was able to muster support from America's most influential conservative politicians and pundits, but was so lacking in legal foundation, that it is unlikely that any federal judge, no matter how conservative, would have thought it proper to intervene. In other words, while judges do listen to popular opinion, their job security gives them the luxury of ignoring public opinion when it is entirely irrational and contrary to black letter law. All too often, people see inconsistency between the actions of conservative politicians and conservative judges, and mistakenly assume that judges are acting "liberally" when all they're really doing in adhering to the law.

This observation only goes so far, however. It clearly doesn't explain why, for example, Souter, Kennedy, and O'Connor side less and less often with the other "conservatives" on the Court. I don't think that this deeper phenomenon, which I'll call "liberal drift," has anything to do with brainwashing or the insular elitism of Washington. Rather, I think it is best explained by the Justices own awareness of their role in history. Like most other important public figures, Supreme Court justices care very much about how they will be remembered by later generations. They're all keen students of history; they know the names and notable opinions of their many predecessors on the Court. They know that the Justices responsible for the Dred Scott decision were forever tarnished by it, and that the Justices who drafted Brown vs. Board of Education will forever be celebrated as visionaries. They know that history has cast some Justices in a very favorable light and others decidedly less so. They also know that American history has generally progressed, albeit in fits and starts, towards greater tolerance, greater equality, and more progressive policies. They can see the writing on the wall. Most of them know, for instance, that before too long, laws which discriminate against gays will seem as backwards as the laws of the Jim Crow era.

And unlike politicians, Justices can focus on cementing their historical legacies without worring about the short-term political fallout. As a result, Justices care more about being on the correct side of history, about being remembered as someone whose vision was not limited by the prejudices of his day.

I think it is this desire that causes the phenomenon of liberal drift. Justice Souter has admitted that he was deeply influenced by the late Justice Brennan during his first years on the Court (Brennan's last years). Brennan took Souter under his wing and constantly reminded him of the historical importance of his new job. It clearly had an impact. Similarly, Justice Kennedy, who had been a reliably conservative member of the Court for years, has in recent years drafted some shockingly progressive opinions, particularly the opinion striking down sodomy laws. His recent opinions betray a clear consciousness of their historical significance. O'Connor, too, has found herself in the position of being the deciding vote in cases with the potentional to have enormous historical impact, most recently the Bollinger affirmative-action case. In most of these cases, she has refused to follow the opinions of her conservative colleagues. She too seems to be aware of her historical role and has been apprehensive about doing anything that might someday tarnish her legacy. Even Rehnquist himself has, on a few occasions, refused to overturn precident that he clearly does not agree with, apparently deciding that some historical battles have to be conceded.

Given that President Bush will likely try to pack the Court with as many reliably conservative Justices as he can in the coming years, liberals can only hope that the phenomenon of liberal drift continues unabated.