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April 21, 2010

"Becoming Justice Stevens: How and Why Some Justices Evolve"

The title of this post is the title of this interesting new FindLaw commentary by Professor Michael Dorf, which includes a section sub-titled "The Death Penalty: Justice Stevens's Recent Change of View."  In addition, here are the first few paragraphs of the piece's final sub-heading "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.

Hmmm.  Not only am I not completely convinced by "provocative suggestion" that American constitutional law itself has a "liberal bias," but I am completely mystified why Professor Dorf did not reference the "open-ended constitutional provisions" of the Second, Fourth, and Eighth Amendments in support of his thesis. 

April 21, 2010 at 08:40 PM | Permalink


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Say I move to the Bekaa Valley, Hezbollah country. Within a week, I start to think their point of view no longer merits wiping out the lot. They are pretty nice, regular people. Within a month of hearing nothing but their propaganda, I start to think there is some justice and logic to their heinous views. Within a year, of hearing nothing else, I become an enthusiast.

That is true of everyone. You cannot overcome your surrounding culture.

So start with common sense Midwest values, and real world lawyer experience, with good feedback from the public. Now, move to criminal cult enterprise headquarters, and stay 30 years. There is no hope to escape coming around to their beliefs.

They have only one true belief. No matter their religion, political affiliation, sworn allegiances. It trumps all, including family, self preservation, and loyalty to the nation. Nothing can overcome the sole true belief of the criminal cult enterprise.

Rent seeking.

Posted by: Supremacy Claus | Apr 22, 2010 12:11:41 AM

I am glad these judges evolve, I hope they change their views honestly after seeing everything they have seen. Hopefully it's done in good faith, but I guess we will never know.

Posted by: justin | Apr 22, 2010 2:13:34 AM

I think that when he referred to a “liberal bias,” he didn’t mean “liberal” in the polemical sense that it is normally used today. It is a fairly recent development in American politics (last few decades, or so) that “liberalism” became a dirty word, to the point that even those who espouse it are usually at great pains to avoid saying so.

I believe he is simply referring to the proverbial one-way ratchet, which by its nature tends to liberalize the law over time.

Posted by: Marc Shepherd | Apr 22, 2010 10:37:32 AM

Thanks for the plug. You needn't be at all mystified, much less "completely mystified," by my failure to include "the Second, Fourth, and Eighth Amendments in support of" my thesis. In the very language you quote I referred to "provisions such as the First, Fifth, and Fourteenth Amendments." The phrase "such as" connotes a non-exclusive list. So I did not and do not disagree that other constitutional provisions are open-ended.

Posted by: Mike Dorf | Apr 22, 2010 4:35:00 PM

Prof. Dorf,

That is fine but it also demonstrates the sort of thinking brought up at the start of Levinson's classic "The Embarrassing Second Amendment ". Even if you acknowledge (for example) that the Heller majority reached the correct outcome (regardless of how they got there), the list you chose demonstrates a mental map where such matters just aren't important.

Posted by: Soronel Haetir | Apr 22, 2010 5:58:00 PM

Soronel captured part of the point of my overwrought rhetorical handwringing, and my broader concern is the absence of evidence of liberal drift in criminal justice settings. Indeed, I fear the claim of liberal drift is mostly a myth in all but a few narrow settings.

Posted by: Doug B. | Apr 22, 2010 8:11:16 PM

I chose the examples I did because I teach con law rather than (constitutional) criminal procedure, although my discussion of attitudes on the death penalty--under the Eighth Amendment--is my primary example, so I can hardly be fairly accused of ignoring all of the criminal justice issues. Meanwhile, Doug: did you see the chart in the Times article? It's reproduced from an article by Jeff Segel et al. One can certainly quibble with the coding in the Segel/Spaeth database (as I sometimes do) but they include criminal cases in their analysis. So unless you think their data are all junk, I don't know what your basis is for calling their conclusion a "myth."

Posted by: Mike Dorf | Apr 22, 2010 8:30:08 PM

Liberal has a specific, technical meaning in the law. It means more procedure, for more government make work. Had the Supreme Court abolished the death penalty, it would have ended a multi-billion dollar death penalty appellate business. These government make work sinecures represent the unstated agenda. The lawyer is getting his from the criminal cult hierarchy. The 23 million crime victims each year may rot.

Posted by: Supremacy Claus | Apr 22, 2010 10:45:04 PM

Mike, some follow-up points to make my "mostly a myth" views clearer:

1. Thanks for the engagement, this is a useful and important debate.

2. I do not mean to "accuse" you of anything, though I do think that far too many modern con law folks focus far too much on non-criminal con law issues (which comprise maybe 10% of the docket), and do not pay sufficient attention to crim con law issues WITH THE EXCEPTION OF THE DEATH PENALTY.

3. I was referencing the death penalty with my agreement that a liberal drift is real and tangible in "a few narrow settings." But I think that drift is a product of the "seeing a broken system" factor you reference (AND I see it as vindication of Marshall's famous hypothesis that rational folks tend to move away from the DP the more they learn about how it actually operates).

4. The "drift" I have noticed in the context of the Second, Fourth, and Eighth Amendments has tended to be more "conservative" --- although here is where the political/legal labels start to break down. I see Heller as a classical liberal opinion, though in modern politics it is called conservative. Similarly, when new technologies enters the picture --- e.g., thermal imaging in Kyllo, virtual child porn or videos of animal torture --- these labels are harder to peg. And cases like Raich and Kelo strike me a VERY conservative, but many modern liberals seem pretty supportive of these rulings.

5. I worry that the critical importance of agenda setting is often lost in the "drift" debate. While prison populations and criminal justice control has grown exponentially in the last 3 decades (with lots of racial skews impacting voting rights and other critical civil rights), the Justices have principally be concerned ONLY with regulating the operation of the death penalty. These cert choices are, in my view, evidence of a very "conservative" court, especially since the supposed "liberal wing" has always had at least 4 votes to put these cases on the agenda. Perhaps there is are defensive denial stories here, but I also think a drift RIGHT, especially by Breyer and Ginsburg, also explains why felon disenfrancisement and acquitted conduct sentencing and lots of other ugly issues never even get taken up by SCOTUS.

6. Segel et al. conclude that, of the Justices studied, "Twelve moved to the left, seven to the right and three in more exotic ways." This confirms my instinct that claims of frequent/consistent liberal drift is mostly a myth in all but a few narrow (and highly salient) settings. The death penalty for many Justices and the pro-Roe migration for O'Connor and Souter (and Kennedy?) are tangible and important (but I think narrow) settings in which the liberal drift story seems accurate. But I read your piece, Mike, to be postulating a much broader left-drift phenomenon, and it is this a purported trend which does not match up with the constitutional facts I see on the ground.

7. I am SURELY biased by my focus principally on the criminal law side of the docket. But since that it is biggest chunk of the Court's term-to-term constitutional work (and also, by many magnitudes, the biggest chunk of the cases in the cert pool), I do not think my crim-law bias is too distorting when I expressed fear that the "claim of liberal drift is mostly a myth in all but a few narrow settings."

Hope this makes sense as an account of my "mostly a myth" conclusion. And if you agree that this is a useful and important debate (which I am eager to continue), perhaps we should move it up to a new post on one of our blogs.

Posted by: Doug B. | Apr 23, 2010 10:36:15 AM

Thanks Doug. I think that narrows our disagreement, perhaps to the point of nonexistence. I was using only the sample that was reproduced in the Times story, which is smaller and shows more leftward-drifting Justices but notably does not include Roberts and Alito. And as I've said, I think leftward drift by Republican appointees is less likely going forward because of the better screening being done.

I also agree with you that the Segel/Spaeth database can miss important selection effects. I don't have enough of a basis to evaluate claims about differences in drift patterns in non-capital criminal cases. One anecdotal piece of evidence for your view was the mock baseball card that some of Justice Blackmun's law clerks once made for him. He was listed as "bats left except in criminal procedure cases."

Posted by: Mike Dorf | Apr 23, 2010 3:31:26 PM

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