An excellent summary perspective.

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Tuesday, April 13, 2010

Stuart Taylor Jr.: Commentary

How Republican Justices Evolve Leftward

Justice John Paul Stevens, who in most portrayals has migrated from the center of the court when appointed by President Ford in 1975 to its left flank, has told several reporters that his ideology has not really changed much.

Rather, according to Stevens, he has remained about where he always was while newer and younger appointees have pushed the court to the right.

The record suggests otherwise. Like many of us, this extraordinarily intelligent, self-effacing gentleman, who will turn 90 on April 20, may be kidding himself a bit about his own consistency.

Like some other Republican-appointed justices in recent decades -- Harry Blackmun and Sandra Day O'Connor and, to a lesser extent, David Souter, Warren Burger and Lewis Powell -- Stevens has become markedly more liberal during his years on the court.

Meanwhile, no Democratic-appointed justice has become substantially more conservative over time. This helps explain why, despite the fact that Republican presidents have appointed 12 of the last 15 justices, the court itself has never -- or, at least not yet -- made the dramatic right turn that many reporters and commentators have repeatedly proclaimed. Indeed, the court's rulings have remained left of the center of general public opinion on most (though not all) of the biggest issues.

What explains the asymmetry in justices' evolution? More on that below. First, some facts about Stevens and other leftward-moving justices.

Seen in his early years as an idiosyncratic loner given to writing separate opinions joined by no other justice, Stevens was never a solid conservative. But he joined conservatives on ideologically charged issues including racial affirmative action, the death penalty, rights of criminal defendants, freedom of speech and government funding of abortion. Since about the mid-1980s, however, he has taken positions markedly to the left of where he started on these and other big issues.

Examples:

Race. Stevens sided with conservatives in the court's first big cases involving racial affirmative action preferences in admissions and federal contracting. In the 1978 Bakke decision, Stevens wrote a dissent joined by his three most conservative colleagues arguing that the 1964 Civil Rights Act barred state universities from giving race-based preferences to minorities. And his 1980 dissent in Fullilove v. Klutznick argued for striking down a federal law requiring racial quotas in federal contracting.

"Preferences based on characteristics acquired at birth foster intolerance and antagonism against the entire membership of the favored classes," Stevens wrote. He added in an acidic footnote that any "serious effort to define racial classes by criteria that can be administered objectively" must look to precedents such as Nazi Germany's detailed definition of a Jew. But since the mid-1980s, Stevens has taken positions contrary to both of those early opinions while supporting every racially preferential program to come before the court.

Death penalty. In 1976, six months after his appointment and four years after the court had struck down every death penalty law in the country, Stevens took a center-right stand on one of the hottest issues facing the nation by writing one of the opinions that reinstated capital punishment. The 1976 decisions included procedural requirements designed to make imposition of the penalty less arbitrary and more fair. But over the years, Stevens became convinced that the safeguards have not worked and the death penalty would never be fair. Finally, in a 2008 opinion, he suggested for himself alone that all death penalty laws should be struck down for good.

Defendants' rights. Stevens has said in interviews that his father's apparently unwarranted embezzlement conviction taught him that the criminal justice system could lead to great injustices. But "examining Stevens' first full year on the court nevertheless reveals a justice who often appears unsympathetic to criminal defendants' rights," according to "The Stevens Myth," a recent New Republic piece by Justin Driver, an assistant professor at the University of Texas Law School.

"Stevens wrote a dissent in Doyle v. Ohio contending that it should be constitutional for a prosecutor to cross-examine a defendant regarding his failure to offer an exculpatory story immediately after being arrested and receiving Miranda warnings," Driver observes. "... Today, in stark contrast, Stevens views Miranda as sacrosanct."

Freedom of speech. The early Stevens was seen as no friend of broad free speech rights, then -- though not so much now -- a liberal article of faith. He wrote a plurality opinion in a 5-4 decision in 1976 upholding local zoning laws limiting where adult (but not obscene) films could be shown. Two years later, he ruled for the court, over a liberal dissent, that the Federal Communications Commission could penalize a radio station for airing George Carlin's "Filthy Words" monologue. But in recent decades Stevens has usually joined liberals in free speech cases.

Medicaid abortions. In 1977, Stevens joined a majority ruling that states may constitutionally deny Medicaid funding for abortions that did not qualify as "medically necessary." William Brennan, Thurgood Marshall and Blackmun dissented. Since then, Stevens has been a reliable supporter of abortion rights.

Stevens' evolution resembles Blackmun's more dramatic movement from fairly consistent conservative after President Nixon appointed him in 1970 to becoming the most liberal justice when he retired in 1994. (The even more liberal William Brennan and Thurgood Marshall had retired in 1990 and 1991, respectively.)

Blackmun was known above all as a passionate champion of abortion rights since he wrote Roe v. Wade in 1973. That decision seemed less controversial when issued than it was to become; indeed, Stevens was not asked a single question about abortion during his brief 1975 confirmation hearing. Over the next decade, Blackmun had also become passionately liberal on racial preferences, gay rights, the death penalty, defendants' rights, religion and most or all other big issues.

O'Connor's leftward evolution -- from moderate conservative in the first few years after President Reagan named her in 1981 to moderate liberal by the time she retired in 2005 -- was less dramatic but unmistakable.

Her early abortion opinions, for example, led many experts to predict that she would vote to overrule Roe v. Wade. She also voted against constitutional protection of homosexual conduct in 1986 and sided through 1995 with conservatives on racial preferences, warning in a 1989 plurality opinion that they may "promote notions of racial inferiority and lead to a politics of racial hostility."

But in 1992, O'Connor cast a crucial vote -- as did Souter and the Reagan-appointed Anthony Kennedy -- that joined liberals (including Blackmun and Stevens) in reaffirming the basic abortion right declared in Roe. While O'Connor, Souter and Kennedy trimmed abortion rights around the edges over liberal protests, they left U.S. abortion law more liberal than that of any nation in Europe.

And in 2003, O'Connor voted with Souter, Stevens, Kennedy, and Clinton-appointed Justices Ruth Bader Ginsburg and Stephen Breyer to strike down a Texas prosecution for homosexual sodomy as unconstitutional. That year she also wrote a major 5-4 decision -- joined by Stevens, Souter, and the two Clinton appointees (but not Kennedy) -- upholding the University of Michigan Law School's very large racial preferences in admissions. The law school would, for example, almost always admit a black or Hispanic applicant with a B average ahead of an otherwise similarly qualified Asian or white student with an A average.

Stevens and the other more liberal justices have sometimes gotten a fifth vote from Kennedy, who since shortly after his 1988 appointment has been center-right on some issues and center-left on others. This posture has enabled Kennedy in recent years -- much like O'Connor from about 1990 to 2005 -- to be the pivotal vote determining whether liberals or conservatives would win. But unlike O'Connor, Stevens and Blackmun, Kennedy has been fairly consistent over time.

One reason why so many Republican appointees have turned out to be more liberal than the presidents who picked them has been the difficulty of getting nominees with conservative paper trails through the Senate. Reagan chose Kennedy, whose record as an appellate judge was fairly centrist, only after the Senate had rejected the far more conservative Robert Bork by 58-42. The first President Bush chose Souter, a so-called stealth nominee, because his views were so unknown that there was little for Democrats to attack. He soon proved to be fairly liberal.

Blackmun and O'Connor as well as Stevens, on the other hand, clearly "evolved," as liberal journalists and academics have said approvingly. Their ideological drift has to some extent mirrored the direction of general public opinion, such as diminishing bias against gay people. But the public has never moved sharply to the left -- as has Stevens and as did O'Connor and Blackmun -- on abortion rights, racial preferences or church-state issues such as school prayer.

While many liberals see this trend as a case of acquiring wisdom on the job, conservative critics including Justices Clarence Thomas and Antonin Scalia have claimed that their more liberal Republican-appointed colleagues have been moved neither by wisdom, nor by legal principle, nor by general public opinion, but by the leftward march of the intellectual elite, especially in the media and academia.

While I would not dismiss the liberal view, the conservative critique seems more plausible. Indeed, it would be only human, as I wrote in a 2003 column, for justices who arrive without settled ideological convictions to evolve in a liberal direction.

The justices' reputations are determined in large part by mostly liberal news reporters, commentators and law professors and by liberal feminist, civil rights and professional interest groups such as the American Bar Association. Newly appointed justices who vote conservative are often portrayed as uncompassionate right-wing ideologues. Those who move leftward win praise for enlightenment. ("I ain't evolving," the aggressively conservative Thomas has reportedly told clerks.) And the bright young law clerks -- the justices' closest professional collaborators -- tend to come from elite law schools where conservative professors are rare birds and general public opinion is widely seen as benighted.

As a conflicted moderate with (for example) a center-left sympathy for gay rights and a center-right discomfort with large racial and gender preferences, I myself am more happy with the court's direction than I would be had Stevens, Blackmun, O'Connor, Souter and Kennedy all been as conservative as Scalia, Thomas, Samuel Alito, Chief Justice John Roberts and the late Chief Justice William Rehnquist. Or vice versa.

I am also concerned that the balance may have tipped too far to the right when Alito replaced O'Connor in 2006, making possible such aggressively conservative (and in my view unwise) decisions as the 5-4 ruling in January striking down the 63-year-old federal ban on independent campaign spending by business (and other) corporations and unions.

But don't believe people who portray the court's handiwork in recent decades as moving to the right of the mainstream of general public opinion, and as moving dramatically to the right of the pre-Reagan court.

Tracking How Justices Were Perceived When Nominated

The graph presents historical data from a database compiled by Northwestern law professor Lee Epstein and her colleagues. It's an analysis of Segal-Cover scores dating back to 1937.

More at Ninthjustice.NationLJournal.com

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Visit the link for a great analytical view of various Justices at the point of nomination. Justice Marshall was a full 1.0 Democrat on Segal-Cover Score scale.  Justice Ruth Ginsburg around 7.0.  I thought Justice Ginsburg would have been higher.

I really hope Justice Stevens seat is filled by a highly liberal judge.