Ideological Shifts among Supreme Court Justices: A Closer Look, Exams of Law

Download Ideological Shifts among Supreme Court Justices: A Closer Look and more Exams Law in PDF only on Docsity! Ideological Drift among Supreme Court Justices: Who, When, and How Important?∗ Lee Epstein, Andrew D. Martin, Kevin M. Quinn & Jeffrey A. Segal† Abstract When President George W. Bush declared that his Supreme Court nominee, Harriet E. Miers, was “not going to change, that 20 years from now she’ll be the same person with the same philosophy that she is today,” no one should have been shocked. To the contrary: The President was merely reiterating a claim dominant in public and scholarly discourse over the Supreme Court—that justices come to the Court with robust ideological outlooks and do not veer from them over the course of their tenure. Nonetheless, and despite the commonplace nature of the claim, it is not without its share of skeptics; indeed, some commentators now contend that ideological drift among Supreme Court justices is not just possible but likely. Using systematically developed data and sophisticated statistical tools, we address the ques- tion of whether justices remain committed to a particular doctrinal course over time. The results, as it turns out, could not be clearer: Contrary to the received wisdom, virtually all justices serving since 1937 has grown more liberal or conservative during their tenure on the Court. Finding that change is the rule, not the exception, we develop the implications of our findings for the justices’ appointment to the Court and the doctrine they develop once confirmed. We show, for example, that Presidents hoping to create a lasting legacy in the form of justices who share their ideology can be reasonably certain that their appointees will behave in line with contemporaneous expectations—at least during the justice’s first term in office. But because most justices fluctuate soon thereafter, Presidents emphasize ideology to the neglect of other considerations—such as the advancement of their political party’s electoral ambitions—at their own peril. We conclude with a discussion of the prospects for legal change among the justices of the Roberts Court. Here we consider two plausible scenarios, one in which the justices remain relatively true to their current doctrinal inclinations and another in which members drift. Either way, we find that legal change may be possible—a finding that defies contemporary expectations about the inertia of justices and, by implication, the Court in the absence of membership turnover. ∗Forthcoming, Northwestern University Law Review (2007). †Lee Epstein (http://epstein.law.northwestern.edu/) is the Beatrice Kuhn Professor of Law and Professor Po- litical Science at Northwestern University; Andrew D. Martin is Professor of Law and Political Science at Washington University in St. Louis; Kevin M. Quinn is Assistant Professor of Government at Harvard University and a Fellow at the Center for Advanced Studies in the Behavioral Sciences; Jeffrey A. Segal is Distinguished Professor of Political Science at Stony Brook University. We are grateful to Linda Greenhouse for motivating our analysis of ideological change, as well as for her insights on the subject; to the National Science Foundation and Northwestern University School of Law for supporting our work; and to Barry Friedman, John McGinnis, and Nancy Staudt for sharing their thoughts on the contemporary Court. The project’s web site houses a full replication archive (http://epstein.law. northwestern.edu/research/ideodrift.html). I Introducton When the U.S. Supreme Court upheld the use of military commissions for enemy combatants in Hamdan v. Rumsfeld,1 the decision fueled more than a national debate over the powers of the President. It also generated commentary about the ideological composition of the Court. Conservatives proclaimed that they were just one justice, just one vacancy, away from victory in Hamdan2 and a handful of other recent decisions that worked against their interests.3 Liberals worried about just as much.4 The commentary over Hamdan reflects a widely shared belief among journalists, politicians, scholars, and even judges: alterations in the Court’s jurisprudence are unlikely in the absence of membership change. That is because the justices themselves do not exhibit ideological change over the course of their tenure.5 To paraphrase the old proverb, once a conservative, always a conservative. Likewise for liberals.6 Why the assumption of stable preferences is so deeply held is open to speculation. Some analysts suggest it would defy logic to expect mature persons, with years of experience in the legal world, to revisit their jurisprudential views. Would a John G. Roberts, Jr.—a justice who has studied, litigated, or adjudicated court cases for over half his life—alter his ideological preferences? The answer, according to Professor David A. Strauss, is that he would not: 1126 S. Ct. 2749 (2006). 2The vote in Hamdan was five-to-three. Because he served on the appellate court panel that had upheld the commissions, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), Chief Justice Roberts recused himself. Had he participated, many commentators assume he would have once again supported the administration. See, e.g., Cass Sunstein, The Court’s Stunning Hamdan Decision, New Rep. Online, June 30, 2006, http://www.tnr.com/ (“The current Court itself remains badly divided. We should emphasize that Hamdan was decided by a narrow margin of 5-3, and we should not neglect the fact that Chief Justice Roberts did not participate in the decision; the reason is that he was part of the three-judge lower court, now reversed, which had ruled broadly in the President’s favor.”) 3E.g., the five-to-four decisions in Kelo v. City of New London, 545 U.S. 469 (2005) (taking of property for economic development does not violate the “public use” restriction of the Fifth Amendment’s Taking Clause); Grutter v. Bollinger, 539 U.S. 306 (2003) (a law school’s use of race in admissions decisions does not violate the Fourteenth Amendment’s Equal Protection Clause; Roper v. Simmons, 543 U.S. 551 (2005) (the Eighth Amendment prohibits the imposition of the death penalty for crimes committed when the defendant was under the age of 18). 4Commentary on Hamdan and the ideological composition of the Court appears on numerous blogs. See, e.g., the Journal of Applied Episdemology, Today’s Hamdan Decision, June 30, 2006, http://appliedepistemology.com/node/96 (“The scary lesson that Hamdan teaches us is that the only thing currently standing between American democracy and an executive branch autocracy is John Paul Stevens’ bath mat.”); the National Review Online, Five, Wrong on Hamdan, June 30, 2006, http://article.nationalreview.com/ (“The Mystery Five [justices] have simply practiced once again the utterly lawless willfulness that they have proclaimed to be their mission. And they undoubtedly know that they will receive ample cover, in the form of fawning accolades, from legal academia and the liberal media.”). 5We develop these points infra Part IIA; see also infra note 25. Suffice it to note here that the claim of ideological consistency not only appears in commentary on the Court but undergirds many important theories of judicial deci- sions, or at least tests of those theories. Consider “separation of powers” theories, which suggest that the Court takes into account the preferences and likely actions of Congress when it interprets statutes. The typical assumption is that the sincere preferences of Court do not change unless the center of the Court (the median) changes as a result of mem- bership turnover. See, e.g., William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L. J. 331 (1991); William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 Calif. L. Rev. 613 (1991); Pablo Spiller & Rafael Gely, Congressional Control of Judi- cial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. Econ. 463 (1992) (all three detailing how the Court’s sincere or raw preferences move with membership changes but explaining why the Court may not act on those preference). Likewise, some adherents of the attitudinal model of judicial decisions, which holds that justices vote on the basis of their ideology, describe attitudes as “relatively enduring.” See David W. Rohde & Harold J. Spaeth, Supreme Court Decision Making (1976), 72. 6The proverb is “Once a thief, always a thief”. 1 course of their tenure.17 To see the point we need only consider the most recent appointee, Samuel A. Alito, Jr. From the day President Bush announced the nomination, newspapers as ideological disparate as Wall Street Journal and the New York Times deemed Alito a “right-of-center” nominee. “With yes- terday’s nomination of Sam Alito to the Supreme Court,” wrote the Journal’s editors, “President Bush reached into his John Roberts’ playbook to name a judicial conservative with impeccable credentials.”18 The liberal Times agreed: The [President’s] solution to almost every problem seems to be either to rely on a close personal associate or to pander to his right wing. When the first tactic failed to work with the Harriet Miers nomination, Mr. Bush resorted to the second. The Alito nomination has thrilled social conservatives, who regard the judge to be a surefire vote against abortion rights.”19 After the Senate’s hearings, the editors of both papers became even more secure in their predictions. “What we’re confident Judge Alito won’t do,” proclaimed the Journal, “is join the Court’s liberal wing on cases such as Lawrence [v. Texas], and intrude willy-nilly into social matters best left to legislatures to solve.”20 The Times even advocated a filibuster because of “Judge Alito’s refusal to even pretend to sound like a moderate.”21 Clearly the assumption that Alito was a conservative and would remain a conservative dom- inated contemporary discourse, as it has over so many recent nominations. Nonetheless, at least some commentators question the assumption of ideological stability.22 Both doctrinal and empirical analyses, they assert, support the view that justices can and do change over the course of their tenure. They even contend that ideological movement is possible for those justices, such as Alito, who appear solidly in one ideological camp or the other.23 In what follows we briefly consider the conventional assumption about the lack of ideological movement and challenges to it. We end with a consideration of why this debate is worthwhile to resolve. 17See, e.g., Richard G. Wilkins, et al. Supreme Court Voting Behavior: 2003 Term, 32 Hastings Const. L.Q. 769, 776 (“both the media and academicians are fond of attaching ideological labels to the Court and its personnel.”); Ruger, supra note 10, at 1209-1210 (“We are fond of putting our [justices] into neat adjectival boxes. . . . These ty- pologies often reflect perceived attitudinal or ideological preferences: some justices are called ‘liberal’ or ‘conservative’ or ‘moderate’ . . . . But efforts to describe and classify the Justices . . . often rely . . . on the idea that once a Justice is properly pegged, his or ideology . . . is not expected to evolve much.”); Robert E. Riggs, When Every Vote Counts: 5-4 Decisions in the United States Supreme Court, 1900-90, 21 Hofstra L. Rev. 667, 701 (1993) (“assigning ideological labels” is appropriate because “during most Terms, most Justices voted consistently with their labels.”) 18A Fight Worth Having, Wall St. J., Nov. 1, 2005, at A16. 19Another Lost Opportunity, NY Times, November 1, 2005, at A26. 20Hot Topic: Stare Indecisis, Wall St. J., January 14, 2006, at A8. 21The editorial continued: “A filibuster is a radical tool. It’s easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.” Senators in Need of a Spine, NY Times, Jan. 26, 2006, 22A. 22CITE needed here. See infra. 23See infra, Part IIB. 4 A The Conventional View As even our brief discussion thus far suggests, no one should have been shocked when President George W. Bush declared that his Supreme Court nominee, Harriet E. Miers, was “not going to change, that 20 years from now she’ll be the same person with the same philosophy that she is today.”24 To the contrary: The President was merely reiterating an assumption dominant in public and scholarly discourse on the Supreme Court—what we call the assumption of stability, or the idea that justices come to the Court with robust ideological outlooks and do not veer from them over the course of their tenure.25 The genesis of this view seems to lie both in intuition and empirical observation. Intuitively, it seems implausible to believe that justices would have pause to rethink their presumably well- entrenched beliefs over matters jurisprudential. Consider Ruth Bader Ginsburg. As a former law professor, she presumably held strong views about the areas of law in which she taught, wrote, and litigated; it is the odd law professor who does not, and Ginsburg appears to be no exception.26 As a U.S. Court of Appeals judge, she likely held or developed preferences over the wide array of legal matters she adjudicated; it is the odd judge who does not.27 Moving up to the Supreme Court, under most theories of judging, would give her even more freedom to act on those preferences, and act on them term after term.28 Justice Ginsburg, of course, is not alone. In looking at the thirty-six justices who have served since 1937,29 twenty were law professors or judges at the time of their nomination30—including each and every member of the current Court. On average, the justices serving in the 2006 term sat as federal appellate judges for seven years. The three former law professors, Justices Scalia, Breyer, Ginsburg, worked in the academy for a combined total of thirty-seven years.31 24Press conference, October 4, 2005. Transcript available at: http://www.whitehouse.gov/news/releases/2005/10/20051004-1.html. 25Ruger, supra note 10, at 1218, deems the assumption of preference stability “near hegemonic.” With the scattered exceptions we review in infra Part IIB, we wholeheartedly concur with Ruger’s sentiment. The assumption lies at the core of many theories of judicial decision making, or at least the tests of those theories. For examples, see supra note 5, as well as Ruger, supra note 10, at 1217-1218. It has been repeated in many scholarly studies of the Court, as well as in more informal commentary. See, e.g., Strauss, supra note 7; Lawrence Baum, Measuring Policy Change in the U.S. Supreme Court, 82 Am. J. Pol. Sci. 905, 907 (develops a method for assessing policy change based on the assumption that justices’ preferences “remain constant throughout [their] career”); Glendon Schubert, The Judicial Mind Revisited (1974), 159, (presents data showing a high-level of stability in voting for justices serving from 1946-1968). . 26Actually, prior to her service on the U.S. Court of Appeals for the District of Columbia, Justice Ginsburg was a prominent and unabashed supporter of women’s rights and a pro-choice advocate. Among her many writings on these subjects are The Equal Rights Amendment is the Way, 1 Harv. Womens L. 19 (1978); Sexual Equality Under the Fourteenth and Equal Rights Amendments, 1979 Wash. U. L. Q. 161 (1979). 27For analyses of the effect of ideology or partisanship on judging at the federal appellate level, see Cass R. Sunstein, et al. Are Judges Political: An Empirical Analysis of the Federal Judiciary (2006); Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L. J. 2155 (1998). 28E.g., on the attitudinal model of judging, justices vote on the basis of their sincerely held ideological attitudes toward cases before them. Freeing justices from considerations other than ideology, according to attitudinalists, is the lack of electoral accountability and ambition for higher office, the control they enjoy over their agenda, and the dearth of judicial superiors. See Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (2002). 29To derive the figure of thirty-six we count Chief Justice Rehnquist only once. 30Data in this paragraph are derived from Lee Epstein, et al., The Supreme Court Compendium (2007), Table 4-12. 31Justice Breyer, at Harvard from 1967-70; Justice Ginsburg at Rutgers, 1963-72 and Columbia 1972-80; and 5 Lending weight to intuitions about the entrenchment of ideology, and thus the implausibility of change, comes a wealth of behavioral data. Particular impressive is the extent to which initial impressions of the ideology of the justices, as nominees, correlate with their subsequent voting on the Court. At the time of his appointment, as we noted, journalists deemed Samuel Alito a conservative.32 Three decades earlier, newspaper editors wrote much the same of the Richard Nixon nominee, William H. Rehnquist. “Mr. Rehnquist,” according to the New York Times was “a Goldwater conservative [with] a brilliant professional background but a questionable record on civil liberties.”33 And twenty years before Rehnquist, the press pigeon-holed William J. Brennan, Jr. as a liberal.34 The newspaper editors were hardly in error. Over the course of his thirty-five years of service Chief Justice Rehnquist supported defendants in only two out of every ten criminal cases, and civil rights plaintiffs in but 27 percent of the 694 discrimination suits in which he participated.35 Those figures for Brennan were nearly the reverse. In only 20 percent of the cases did he vote against defendants or civil rights plaintiffs. As for Justice Alito, his voting in the 2005 term places him closer to a Rehnquist than a Brennan, just as the editors predicted.36 It is one thing, of course, for the press to forecast accurately the behavior of a few seemingly extreme ideologues, the Rehnquists and Brennans, and quite another to predict the voting of the balance of nominees—some of whom had said or written little prior to their appointment. Nonetheless, the newspaper editors generally meet that more rigorous standard, as Figure 1 shows. There we draw a comparison between the editors’ initial branding of the Supreme Court nominees (as analyzed and summarized by Jeffrey A. Segal, et al.) and the votes they, as justices, later cast.37 Specifically, on the horizontal axis we display the editors’ ideological assessments, ranging from very liberal to very conservative.38 Note that nominees deemed conservative by the journalists appear toward the right of the figure (e.g., Chief Justice Rehnquist); liberals are toward the left (e.g., Justice Brennan). On the vertical axis we show the percentage of conservative votes cast by the justice over the course of his or her career.39 Justices who cast a high percentage of conservative Justice Scalia at Virginia, 1967-74 and Chicago, 1977-82. We include here only full-time service. Justice Alito served as an Adjunct Professor at Seton Hall from 1999-04; Justice Kennedy lectured at the University of the Pacific between 1965-68; and Chief Justice Roberts was an adjunct at Georgetown in 2005. Justice Stevens was a lecturer at Northwestern, 1950-54 and at Chicago 1954-58. 32See supra notes 18, 19, 20, and 21. 33The Court Nominations, NY Times, Oct. 22, 1971, at 38. 34See infra Figure 1. 35We computed the figures in this paragraph from the Harold J. Spaeth’s U.S. Supreme Court Database, with analu=0 and dec type=1, 6, or 7, available at http://www.as.uky.edu/polisci/ulmerproject/sctdata.htm. 36According to Spaeth’s database, supra note 35, in the 2005 term Alito supported criminal defendants in 16.7 percent of 12 cases in which he participated; he supported civil rights plaintiffs in 3 of 5 cases. See also infra Figure 19. 37Jeffrey A. Segal, et al. create their editors’ ideology scores by content analyzing the editorials in four newspapers— two with liberal leanings and two, conservative—between the time the justice is nominated and the Senate’s vote. The resulting scores range from 0 (very conservative) to .5 (moderate) to 1 (very liberal.), and are available at: http://ws.cc.stonybrook.edu/polsci/jsegal/qualtable.pdf. Segal (and Cover) initially developed them in Jeffrey A. Segal & Albert D. Cover, Ideological Values and the Votes of Supreme Court Justices, 83 Am. Pol. Sci. Rev. 557 (1989); an updated version appears in Epstein & Segal. supra note 15. We computed the votes cast by justices from Spaeth, supra note 35 38See supra note 37. 39We derived the votes from Spaeth, supra note 35. Liberal votes are those in favor of defendants in criminal cases; of women and minorities in civil rights cases; of individuals against the government in First Amendment, privacy, and due process cases; of unions over individuals and individuals over business in labor cases; and the government over businesses in economic regulation litigation. Conservative decisions are the reverse. 6 ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● 1940 1950 1960 1970 50 60 70 80 90 10 0 Justice Black Term P er ce nt ag e of V ot es S up po rt in g th e R ig ht s C la im ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● 1940 1950 1960 1970 50 60 70 80 90 10 0 Justice Douglas Term P er ce nt ag e of V ot es S up po rt in g th e R ig ht s C la im Figure 2: Support for civil liberties claims: The career voting records of Justices Hugo L. Black and William O. Douglas. This figure reports the percentage of votes cast each term in which Justices Black (left panel) and Douglas (right panel) supported defendants in criminal cases; women and minorities in civil rights cases; and individuals against the government in First Amendment, privacy, and due process cases. The superimposed line is a first degree loess smooth with span =0.33.46 Epstein and her colleagues reached much the same conclusion in their study of the sixteen justices who sat on the Court for ten or more terms and who began and completed their service between the 1937 and 1993 terms.47 At least in the area of civil liberties, the authors concluded that the “preferences of seven justices (Brennan, Burger, Burton, Harlan, Jackson, Marshall, and Stewart) remained constant over the course of their careers. [But the remaining eleven] changed in significant linear or nonlinear ways.”48 In other words, most of the justices in their sample grew increasingly liberal, conservative, or shifted between the two over the course of their career. Espe- cially noticeable to Epstein and her colleagues, as we show in Figure 3, was Harry A. Blackmun’s near complete flip, from one of the Court’s most conservative members to among its most consistent civil libertarians. 46This is an attempt to reproduce Ulmer’s analyses, supra note 44, using data from Lee Epstein, et al., Do Political Preferences Change? A Longitudinal Study of U.S. Supreme Court Justices, 60 J. Pol. 801 (1998), available at: http://epstein.law.northwestern.edu/research/prefchange.html. 47Epstein, et al., supra note 46. 48Epstein, et al., supra note 46. 9 ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● 1970 1975 1980 1985 1990 1995 30 40 50 60 70 80 Justice Blackmun Term P er ce nt ag e of V ot es S up po rt in g th e R ig ht s C la im Figure 3: Support for civil liberties claims: The career voting record of Justice Harry A. Blackmun. This figure reports the percentage of votes cast each term in which Justice Blackmun supported defendants in criminal cases; women and minorities in civil rights cases; and individuals against the government in First Amendment, privacy, and due process cases. The superimposed line is a first-degree loess smooth with span = 0.45.49 Both Ulmer and the Epstein et al. team speculate on explanations for the trends they observed but neither puts those explanations to the test. Which may be just as well since their analyses have their share of problems. Primarily, both studies examine voting records without satisfactorily attending to the content of the litigation they analyze. As a consequence any observed shifts in voting could be as much a result of alterations in the cases, as in the justices’ underlying preferences.50 To begin to see the problem, consider a justice—call her Justice B—who has served on the Court for two terms. Suppose that in her first term, Justice B was quite supportive of defendants in Fourth Amendment cases casting nine out of every ten votes in their favor. In the next term, however, Justice B voted to support defendants in only one of ten cases. If we looked only at her votes, we might conclude that our Justice indeed shifted, and shifted to the right: from 90 percent in favor of defendants to 90 percent against them. But, as Baum points out,51 that conclusion would be premature. It fails to consider the possibility that the content of the cases varied from one term to the next—a real possibility, and one with real implications for how we interpret change (or the lack thereof) on the Court. Figure 4, to continue with our example, shows why. Here the horizontal line represents a single issue dimension, Fourth Amendment search and seizure cases.52 Along that dimension we have ordered the facts of two cases (as well as three justices) from most liberal (most supportive 49We calculated the percentages depicted in Figure 3 from Spaeth, supra note 35, with value ≤ 6, analu=0, dec type=1, 6, or 7. See also supra note 39. 50Epstein et al., supra note 46, attempt to account for changes in “issue stimuli” but the approach they use has its share of problems. Primarily, it is based on a method that assumes preference stability throughout a jus- tice’s career. For more details, see the critique and reproduction of the Epstein, et al. analysis in Andrew D. Martin & Kevin M. Quinn, Assessing Preference Change on the U.S. Supreme Court, working paper available at: http://adm.wustl.edu/papers.php. 51Lawrence Baum, Measuring Policy Change in the United States Supreme Court, 82 Am. Pol. Sci. Rev. 905 (1988). 52We adapt this example Harold J. Spaeth, The Attitudinal Model, in Contemplating Courts (Lee Epstein, ed. 10 of defendants) to most conservative (least supportive of defendants).53 In both cases, 1 (search warrant) and 2 (no search warrant), the police conducted a search of a home, and in both cases the searches yielded incriminating evidence. But only in Case 1 did police obtain a warrant. Owing to the presence of the warrant, Case 1 is more protective of the defendant’s rights than Case 2, and so we place it to Case 2’s left. Justice A (liberal) Justice B (moderate) Justice C (conservative) XX Case 1 (search with warrant) Case 2 (search without warrant) Figure 4: Hypothetical Fourth Amendment search and seizure cases and justices in ideological space. In this depiction, justices vote to uphold any search to their left and void any search to the right.54 Turning to the justices, in Figure 4 we have represented their “most preferred position” or “ideal point” (i.e., how they would vote in the absence of any internal or external constraints). Here, as we can see, A is the most liberal, B moderate, and C most conservative. But what conclusion will Justices A, B, and C reach in the two cases? The answer, under this depiction, is that they will vote to uphold any search to the left of their ideal point and void any search to the right. In words, Justice A will vote to strike down the searches in both cases; neither was protective enough of the defendants’ rights for his taste. Justice C, on the other hand, will vote to uphold both searches; both, he believes, sufficiently safeguarded the Fourth Amendment. As for our Justice B, she will agree with C on the warrant case but with A on the warrantless case. With this example in mind, we can begin to see the consequences of relying on the percentage of votes cast, whether in the liberal or conservative direction, to assess preference change among the justices. Perhaps in Justice B ’s first term, nine of the ten cases involved warrantless searches; but in her second term, nine of the ten cases involved searches with warrants. If that were the case, then Justice B ’s preferences did not necessarily move; rather the content of the cases changed—and changed in a way that made it more difficult for her to cast a liberal vote in her second term relative to her first. C Importance of Resolving the Debate That published studies of ideological movement fail to take into account changes in case content may render their specific conclusions suspect. Nonetheless, we ignore the potential challenge they pose to assumption of stability in judicial preferences at our own peril. Why? Put simply, and our quibbles with existing studies aside, it is hard to ignore the fact that by virtually all accounts—from the quantitative to the qualitative, from the historical to the doctrinal—some justices did move to the left or right during their tenure on the Court, and moved quite a bit. If the law reviews are any indication, Harry Blackmun appears to be one. His jurisprudential turn—from a supporter of the death penalty to an opponent, from an advocate of states’ rights to a proponent of federal power, and from an unwillingness to elevate standards in sex discrimination litigation to an ardent supporter of women’s rights—are hardly indices of 1995) and Baum, supra note 51, at 905-906. 53To keep the example simple we display only three justices but it easily generalizes to nine, and we could easily add cases. 54See supra note 52. 11 justices.67 What accounts for the comparatively high rate of failure? Surely one factor is the Constitution’s grant of life tenure for federal judges. With removal for political reasons a near impossibility,68 senators seem to appreciate the long-term implications of their decisions. On the other hand, would life tenure carry as much weight with legislators if their confirmees voted unpredictably, and unpredictably from one term to the next? We suspect not, and extant studies are consistent with our suspicion. Most show that a candidates’ ideology is a, if not the, primary consideration for senators when they cast their votes.69 In fact, the probability of a very liberal senator voting for a moderately qualified but extremely conservative nominee is under .10; the likelihood of a very conservative senator voting for that nominee is close to .90.70 To put it another way, virtually all the senators who cast yea votes for Samuel Alito knew (or at least hoped) they were voting for a conservative, and hoped they were voting for a conservative for the years to come. This is the very idea of partisan or ideological entrenchment.71 A similar calculus, it is worth noting, operates for the many interest groups who lobby against (for) Supreme Court nominees. From their perspective, spending money to defeat (or support) a life-long enemy (or ally) on the Court seems a rational course of action—that is, assuming the groups have accurately predicted the nominee’s ideology and that nominee, as a justice, will continue to espouse that ideology.72 While the former seems quite possible,73 the latter is precisely what we question here—and with good reason at that. The many civil rights groups who lobbied against William Rehnquist may have guessed right—once appointed, he was no friend to their cause—but they were wrong with regard to David H. Souter.74 In discrimination cases, Justice Souter supports the plaintiff almost as often as the current Court’s most liberal member, John Paul Stevens.75 2 The Possibility of Doctrinal Change Battles over the appointment of justices are not the only context for which the assumption of ideological stability has consequences. Another is more doctrinal in nature. It has been common- place for years, and remains so today, for commentators to promote the idea that legal change can only come about with membership change or, alternatively, to downplay the possibility of legal 67A list of candidates rejected by the Senate is available at: http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm. 68For more on this point, see Epstein & Segal, supra note 59, 31-34; Emily Van Tassel, Resignations and Removals: A History of Federal Judicial Service—and Disservice—1789-1992, 142 U. Pa. L. Rev. 333 (1993); Jack Knight & Lee Epstein, On the Struggle for Judicial Supremacy 30 L. & Soc’y Rev. 87 (1996). 69See, e.g., Jeffrey A. Segal, Charles M. Cameron, & Albert D. Cover, A Spatial Model of Roll Call Voting: Senators, Constituents, Presidents, and Interest Groups in Supreme Court Confirmations, 36 Am. J. Pol. Sci. 96 (1992); Charles M. Cameron, Albert D. Cover, & Jeffrey A. Segal, Senate Voting on Supreme Court Nominees: A Neoinstitutional Model, 84 Am. Pol. Sci. Rev. 525 (1990). 70Lee Epstein, et al. The Changing Dynamics of Senate Voting on Supreme Court Nominees, 68 J. Pol. 296 (2006). 71See, e.g., Balkin & Levinson, supra note 15. 72See, e.g., Gregory A. Caldeira & John R. Wright, Lobbying for Justice: Organized Interests, Supreme Court Nominations, and the United States Senate, 42 Am. J. Pol. Sci. 499 (1998). 73For evidence of the predictability of nominees during their first term in office, see infra Figure 13. 74Among the civil rights groups testifying against David H. Souter were the National Lawyers Guild, Supreme Court Watch, and Lambda Legal Defense and Education Fund. See S. Hrg. S.Hrg. 101-1263, Sept. 13, 14, 17, 18, 19, 1990. 75In the 2004 term, Chief Justice Rehnquist voted in favor of civil rights litigants in only 33 percent of the nine cases in which he participated; those figures for Souter were 83.3 (N=12) and 91.7 for Stevens (N=12). Figures are from Epstein, et al. supra note 30, Table 6-5. 14 change in the absence of turnover.76 Hamdan v. Rumsfeld provides an example but it is hardly the only one. Perhaps the quintessen- tial case along these lines is Roe v. Wade.77 While the decision has been controversial almost since the day the Court handed it down, it rises in prominence each time a justice retires. When Lewis Powell announced his resignation in 1987, journalists emphasized his “crucial” role in retaining the 1973 precedent.78 Two decades later, they said much the same about Sandra Day O’Connor: Justice O’Connor’s retirement will not end the court’s majority for Roe, which stands at 6 to 3. But her successor could narrow that majority, and open the door to new abortion restrictions. For example, the Supreme Court ruled by only 5 to 4 that a ”partial birth abortion” ban was unconstitutional; Justice O’Connor’s vote was among the five in the majority.79 The assumption here is that Roe cannot go, or even be narrowed in application, unless the Court ex- periences a turnover in its membership. Ditto for the affirmative action case, Grutter v. Bollinger ;80 death penalty doctrine beginning with Gregg v. Georgia;81 the controversial takings decision in Kelo v. New London82—or, really, any other line of precedent, regardless of its degree of notoriety. The accuracy of this view is an open matter, and one we explore more fully in Part IV. The point here is that its implications are clear. Not only does it work to politicize the confirmation process—if justices were less predictable over the long term, battles over their appointment ought diminish as interest groups expend relatively greater resources elsewhere. It also may well affect the calculus of litigators. If they file petitions only in cases in which their odds of winning are 50-50,83 why bother challenging the right to abortion, the constitutionality of capital punishment, the taking of private property for economic development, or the use of race in university admissions in the absence of a membership change? There would be little reason. But should existing justices experience a change in their jurisprudential outlook, litigation strategy would follow suit, with petitions continuing to flow in these seemingly closed areas. III Analyzing Preference Change on the Supreme Court, 1937-2005 terms Three critical points emerge from our discussion thus far. The assumption of stability (1) is commonplace (though not unchallenged) and (2) has important implications for the appointment 76See supra notes 25 and 5. 77410 U.S. 113 (1973). 78See, e.g., Linda Greenhouse, Powell: Moderation amid Divisions, N.Y. Times, June 27, 1987, at 32. (“His vote was crucial in key areas. . . . On abortion he remained committed, with a shrinking majority, to the 1973 precedent that established it as a constitutional right.”). 79Robin Toner, After a Brief Shock, Advocates Quickly Mobilize, N.Y. Times, July 2, 2005, at 1A. The same article reports the reaction of interest groups: “At the abortion rights group Naral Pro-Choice America, organizers were sending e-mail alerts to 800,000 activists within 15 minutes after the announcement of Justice Sandra Day O’Connor’s resignation. ‘Don’t let Bush take away your choice!’ they declared.” 80539 U.S. 306 (2003). 81428 U.S. 153 (1976). 82126 S. Ct. 24 (2006). 83The Priest-Klein model of litigation predicts that plaintiffs only will go into litigation if they believe that they have roughly a fifty percent chance of winning. George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1, 45 (1984). This prediction is contingent on the decision standard, the parties uncertainty of estimating case quality, and the degree of stake asymmetry across the parties. 15 and work of the justices but (3) is tricky to assess empirically. The primary difficulty is how to solve the vexing problem of variation in case content, and how to solve it on a large-scale basis.84 These questions have perplexed scholars for decades but, fortunately for us, Martin and Quinn, two coauthors of this article, have devised a satisfactory solution.85 Using data derived from the votes cast by the justices and a Bayesian modeling strategy, they have generated term-by-term ideal point estimates for all the justices appointed since the 1937 term—estimates that attend to variation in case content. In other words, using the Martin-Quinn approach we can offer intra- justice comparisons (e.g., is Justice Souter more liberal now than he was in 1992?) without having to consider whether the changes we observe are the result of differences in the content of cases or changes in the justice’s revealed preferences.86 Not surprisingly, the products of the Martin-Quinn method–i.e., their ideal point estimates— have received a good deal of play both in the popular press and in scholarly journals.87 We too have deployed them in a study of the median justice on the Supreme Court;88 and Ruger, along with Martin & Quinn,89 have even invoked them to analyze change on the Court, though for a limited set of justices. Hence, in an effort to conserve space, we direct readers interested in learning more about the Martin-Quinn procedures to these other sources, as well as to web sites housing the data.90 The important point to underscore here is that their estimates overcome major obstacles of the past and thus allow us to make high-quality inferences about justices’ voting over time. What are those inferences? What can we learn about preference change on the Court from the Martin-Quinn estimates? Are the justices as stable as most commentators seem to assume? Or is change the rule, not the exception? Figures 5, 7, 9, and 12 address these questions,91 and the 84Some scholars, most notably, Jeffrey A. Segal, Measuring Change on the Supreme Court: Examining Alternative Models, 29 Am. J. Pol. Sci. 461 (1985), have developed area-specific solutions; in Segal’s case, Fourth Amendment search and seizure litigation. But we know of no work that satisfactorily tackles the problem across the range of legal areas. 85Andrew D. Martin & Kevin M. Quinn, Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999, 10 Political Analysis 134 (2002). 86Because, as we mention in the text, the Martin-Quinn method has been described elsewhere, see Martin & Quinn, supra note 85 and infra note 87, suffice it to note here that their method simultaneously provides comparable estimates of ideal points and cut points (the midpoint between the status quo policy and the potential policy under review; for more details, see infra note 157) by (1) exploiting the overlapping service records of justices and (2) assuming that model parameters governing the cut points are drawn from a common distribution. Overlapping service records allow for model-based comparisons of justices who never served together. For instance, Martin and Quinn use the fact that Chief Justice Warren served with Justice Brennan who served with Justice Scalia to place the ideal points of Chief Justice Warren and Justice Scalia (who never served together) on a comparable scale. The approach achieves intertemporal comparability by assuming that ideal points can onlychange smoothly through time and that any voting records that are consistent with all justices moving equally to the right or equally to the left are the result of changes in the cut points rather than Court-wide changes in preferences. 87See, e.g., Ruger supra note 10; Barry Friedman & Anna L. Harvey, Electing the Supreme Court, 78 Ind. L.J. 123 (2003).; Paul J. Wahlbeck, The Chief Justice and the Institutional Judiciary: Strategy and Constraints on Supreme Court Opinion Assignment, 154 U. Pa. L. Rev. 1729 (2006). For media reports of their research see, e.g., the Wall. St. J., February 1, 2006, at A4; Wash. Post, November 1, 2004, at A19. 88Andrew D. Martin et al., The Median Justice on the United States Supreme Court, 83 N.C. L. Rev. 1275 (2005). 89Ruger, supra note 10; Andrew D. Martin & Kevin M. Quinn, Assessing Preference Change on the U.S. Supreme Court, unpublished ms. available at http://adm.wustl.edu/papers.php 90http://epstein.law. northwestern.edu/research/ideodrift.html contains all the data used in this article. http://adm.wustl.edu/supct.php also houses the Martin-Quinn estimates, as well as annual updates. See also supra note 85 and supra note 86. 91More specifically, Figures 5, 7, 9, and 12 depict the estimated ideal points over time for each justice. To reach conclusions about ideological drift, we examined the preference change profiles for each justice. Examples of these 16 is on the horizontal axis. E.g., if O’Connor was equally as conservative in 2000 as she was say, in 1985 then beginning at the 1985 mark on the vertical axis and moving to the right, we would expect to see neither bright red (indicating that she grew significantly more liberal) nor bright blue (indicating a significant move to the right) but a blackish color. That we do not see. Beginning in the early 1990s, only red appears, indicating a significant turn to the left relative to her voting in the 1980s. Of course scholars and journalists not only took note of this trend but also speculated on its doctrinal consequences (a subject to which we return in Part IV). While the increasing liberalism exhibited by Justice O’Connor, not to mention Justices Black- mun and Stevens, may come as a surprise to very few, we cannot say precisely the same of the others depicted in Figure 5, especially David H. Souter, Anthony Kennedy, and two of the three most recent chief justices, Rehnquist and Warren. When George H.W. Bush selected Souter to serve on the Court in 1990, the President had any number of reasons to believe he was appointing a justice who would cast consistently conservative votes, whether over abortion, prayer in school, criminal rights, or affirmative action. This is not to say that Bush could have opted for an even more reliable solid conservative; in fact he considered several, including Edith Jones.99 But by most accounts Souter was reliable enough.100 Even newspaper editors (and editors of all ideo- logical stripes at that) thought as much. Before Souter joined the Court, they deemed him even more conservative than two of Ronald Reagan’s appointees, Sandra Day O’Connor and Anthony Kennedy at the time of their nominations.101 Figure 5 reveals that the President and the editors were not wrong—at least not initially. For the 1990 term Souter’s ideal point estimate places him far closer to, say, Justices O’Connor and Kennedy than those on the extreme left (Justices Blackmun, Stevens, Marshall). Actually during his first two terms, Souter was the Court’s likely median, or swing, justice.102 That Souter’s ideal point is now closer to the the most liberal member of the Court (Stevens) than to the middle (Kennedy) has not been been missed by Court observers.103 But the extreme leftward movement is notable. Indeed, Souter is the new Blackmun; that is, a justice who, as Figure 6 shows, has grown strikingly more liberal with nearly each passing term. Pointing to his pivotal role in establishing liberal majorities in Lawrence v. Texas104 and Roper v. Simmons,105 some analysts have asserted much the same about Anthony Kennedy, that he has moved significantly to the left.106 While it is true, as Figure 6 shows, that Justice Kennedy drifted 99For an account of the Souter nomination, see Yalof, supra note 59. 100On her blog, at http://www.anncoulter.com/cgi-local/article.cgi?article=67, the conservative commentator, Ann Coulter, provides quote after quote attesting to Souter’s conservative credentials at the time of his appointment. E.g., Newt Gingrich claimed that “Virtually every conservative who knows him trusts him and thinks he’s a competent guy.” The National Right to Life’s John Willke said, “(He) seems to be a judicial conservative, what we call a constitutional constructionist.. . . That’s satisfactory with us, if that’s true.” 101See supra Figure 1 and supra note 37. 102Using the Martin & Quinn scores, Martin, et al., supra note 88, have calculated the justice most likely to have been the median for each term. Souter is that justice for the 1990 and 1991 terms, though the probability that he was the median is reasonably weak (.48 in 1990 and .34 in 1991). Data appear in Martin, et al., supra note 88. 103E.g., Richard H. Fallon, Jr., The “Conservative” Path of the Rehnquist Court’s Federalism Decision, 69 U. Chi. L. Rev. 429, 494 (deeming Souter a “liberal”); Erwin Chemerinsky, The Rehnquist Court and the Death Penalty, 94 Geo. L.J. 1367, 1368 (2006) (placing Souter in the Court’s “liberal wing”); Scott P. Johnson & Robert M. Alexander, The Rehnquist Court and the Devolution of the Right to Privacy, 105 W. Va. L. Rev. 621, 645 (2003) (Justice Souter has “surprised many conservatives with his moderate to liberal voting record.”). 104539 U.S. 558 (2003). 105543 U.S. 551 (2005) 106e.g., Thomas Sowell, Justice Kennedy’s New Move Left: Soft on Crime, Hum. Events, Aug. 18, 2003; Lawrence Friedman, The Limitations of Labeling: Justice Anthony M. Kennedy and the First Amendment, 20 Ohio N.U. L. 19 1990 1995 2000 2005 19 90 19 95 20 00 20 05 Comparison Term Justice Kennedy 1985 1990 1995 2000 2005 19 85 19 90 19 95 20 00 20 05 Comparison Term R ef er en ce T er m Justice O'Connor 1975 1980 1985 1990 1995 2000 19 75 19 80 19 85 19 90 19 95 20 00 Comparison Term Justice Rehnquist 1990 1995 2000 2005 19 90 19 95 20 00 20 05 Comparison Term R ef er en ce T er m Justice Souter 1955 1960 1965 19 55 19 60 19 65 Justice Warren 0.00 0.10 0.20 0.30 0.40 0.50 0.60 0.70 0.80 0.90 1.00 Probability(More Conservative) Legend Figure 6: Estimated preference change profiles for five left-trending jus- tices. The baseline term is on the vertical axis, and the comparison term is on the horizontal. E.g., suppose we are interested in whether Justice O’Connor is more conservative in terms subsequent to 1985 than in the 1985 term. Begin at the 1985 mark on the vertical axis, and read the colors across from left to right. Then consult the legend to see how the probabilities are encoded in the colors, from bright red (indicating that the justice is significantly more liberal) through bright blue (indi- cating that the justice is significantly more conservative). As for Justice O’Connor, the bright red tells us that in many terms after 1985 she was significantly more liberal than she was in that term. 20 to the left early on his career—he is now significantly more liberal now than he was in, say, 1988— since the early 1990s his ideal point has remained flat. Given Kennedy’s crucial role as the pivotal justice on the current Court, this is a finding replete with interesting implications, and we consider them in some detail in Part V. Equally interesting are the patterns of the two chief justices depicted in Figures 5 and 6, Warren and Rehnquist. Juxtaposed against each other we observe change, though the trends differ. At first blush, Warren’s revealed preferences appear quite stable (see Figure 5). The more detailed analysis depicted in Figure 6 confirms a high degree of consistency, though with two important exceptions: his first two terms on the Court. Note the bright red color at the bottom of Warren’s panel, revealing that the Chief Justice became far more likely to exhibit liberal preferences as time marched on. In this way, he resembles Souter, another justice whose behavior altered after his early years on the Court. Unlike Souter, however, Warren did not continue to waiver: By 1955 he became a consistent liberal, neither veering much to the left or right thereafter. By contrast come Rehnquist’s ideal point estimates—estimates that are perhaps the most unex- pected of all the liberal-trending justices. When Nixon appointed Rehnquist to the Court in 1971, newspaper editors and scholars alike agreed on his ideological propensities: Without doubt, they said, he was a solid, if not an extreme, conservative. When Ronald Reagan elevated Rehnquist to Chief Justice in 1986, the refrain was similar: the New York Times declared him a member of the Court’s “extreme right wing.”107 Even when Rehnquist died in September of 2005, the press continued to label him the “architect of [a] conservative court.”108 In short, for over thirty years Rehnquist was tagged as one the Court’s most reliable right-of-center votes. The story emerging from Figures 5 and Figure 6 is more complicated. To be sure, when he joined the Court, Rehnquist’s ideal points placed him as the most extreme (conservative) justice. In fact during the mid-1970s he was to the right of where Clarence Thomas—today’s most extreme conservative—is now.109 But, when Rehnquist was promoted to Chief Justice and Scalia joined the Court, Rehnquist begin to drift left. Note the bright red coloring in Figure 6, indicating that in every term between 1986 and his death in 2004, Rehnquist’s preferences were significantly more liberal than in 1985. Of course, this is not to say that Rehnquist swung as far to the left as Harry Blackmun; he did not. On the other hand, in the Chief Justice’s last term in office his ideal point estimate is closer to the centrist Kennedy’s than to the extreme conservative position that he once held or that Scalia and Thomas now anchor.110 B Trending to the Right That Rehnquist trended to the left is interesting if only because our results refute portrayals of his voting as monolithically conservative over the course of his tenure. Of even greater interest, of course, is whether his movement affected his decisions. Was it the case that Rehnquist was so far to the right that his liberal turn simply made him a less extreme conservative or are traces of the Rev. 225 (1993) (Kennedy has become more liberal in some legal areas). 107Toward a Rehnquist Court, June 18, 1986, at 34A. 108E.g., Linda Greenhouse, William H. Rehnquist, Architect of Conservative Court, Dies at 80, September 5, 2005, at 16A. 109E.g., Rehnquist’s estimated ideal point in 1975 is 4.22 versus Thomas’s, thirty years later in 2004, of 3.45. 110See infra Figure 19. 21 three members of the current Court)—but movement to the right is no small phenomenon in our data set. Even so, close Court watchers will likely see no big surprises in Figure 7. Four decades ago,113 the political scientist Harold J. Spaeth debunked the oft-repeated claim that Frankfurter was one of the “most ardent and consistent advocates of judicial restraint.”114 After demonstrating that Frankfurter’s judicial restraint was “thoroughly subordinated” to his conservative values Spaeth’s response was succinct: “Ardent? Perhaps. Consistent. No.”115 Our results here show that Frank- furter was no more consistent with regard to his ideology. He began his career, in the 1938 term, as a slightly left-of-center justice, closer to the term’s likely median Chief Justice Stone than to either of the extremes, Hugo Black on the left and James McReynolds on the right. Virtually from the start of his second term, however, Frankfurter appears to drift right—a trend Figure 8 confirms. Note the bright blue at the bottom of his panel, indicating a near 1.0 probability that he was more conservative in later terms relative to his first few years on the Court. By the conclusion of his tenure, Frankfurter was second only to John Harlan as the Court’s most extreme conservative voter; and he actually ended his service more firmly planted on the right than Chief Justice Rehnquist. 113Harold J. Spaeth, The Judicial Restraint of Mr. Justice Frankfurter—Myth or Reality, 8 Am. J. Pol. Sci. 22 (1964). 114Henry J. Abraham, Line-Drawing between Judicial Activism and Restraint: A Centrist Approach and Analysis, in Supreme Court Activism and Restraint (Stephen C. Halpern & Charles M. Lamb, eds. 1982) (our emphasis). 115Spaeth’s claim grows out of Spaeth, supra note 113, but appears in Segal & Spaeth, supra note 28, at 409, n. 6. 24 1940 1945 1950 1955 1960 19 40 19 45 19 50 19 55 19 60 Comparison Term Justice Frankfurter 1940 1950 1960 1970 19 40 19 50 19 60 19 70 Comparison Term R ef er en ce T er m Justice Black 1965 1975 1985 19 65 19 75 19 85 Justice White 0.00 0.10 0.20 0.30 0.40 0.50 0.60 0.70 0.80 0.90 1.00 Probability(More Conservative) Legend Figure 8: Estimated preference change profiles for three right-trending justices. The baseline term is on the vertical axis, and the comparison term is on the horizontal. For more details on how to interpret the figure, see Figure 6. Likewise, despite “categorical denial[s] that he had changed his constitutional philosophy,”116 Hugo L. Black’s movement to the right was not missed by some commentators. As James F. Simon once wrote, Black’s “increasingly brittle, unmistakably conservative tilt,” actually proved embarrassing to many of his admirers.117 The results depicted in Figures 7 and 8 confirm the rightward trend throughout Black’s career and especially since the 1960s. Note that in every term after 1960 the probability that Black was more conservative bordered on 1.0. Justice Black served on the Court between the 1938 and 1970 terms. The other justices displayed in Figure 7 are of an equally old vintage, all completing their tenures prior to Black—with two notable exceptions: Antonin Scalia and Byron White. Justice Scalia is the only member of the current Court to have grown consistently more conservative with time, an interesting pattern we investigate more closely in Part V. White too moved to the right but his revealed preferences are more intriguing (see Figure 8). Compared with the early 1960s, he grew significantly more conservative at the start of the Burger Court era; then relative to the early 1980s, he once again took turn to the right during the onset of the Rehnquist Court. Some analysts claim that that these changes are illusory. They say that White “ardently supported individual rights over the claimed rights of the states to abridge citizens’ liberties” but 116Gerald T. Dunne, Hugo Black and the Judicial Revolution (1977), 413. 117James F. Simon, Judging the Justices, 49 Stan. L. Rev. 173, 176 (1996). See also Jed Handelsman Shugerman, A Six-Three Rule, 37 Ga. L. Rev. 893, 922 (2003), (“From 1962 to 1969, the liberals gained their fifth vote, first with Arthur Goldberg and then Abe Fortas. As Justice Black became more conservative, Thurgood Marshall replaced Clark, and the Court retained its reliable five-vote liberal majority.”). 25 that “on issues of law enforcement . . . [he] voted conservatively.”118 Others, however, contend that Justice White was, in fits and starts, more conservative over time.119 Two authors of this article even speculated that his level of conservatism varied by the President in office.120 Whether this hypothesis holds we cannot say without more analysis. But our data do lend support to claims about Justice White’s rightward drift at various points throughout his career. C The Remaining Justices Exhibiting even more exotic patterns than Justice White are William O. Douglas, John Harlan, and Warren E. Burger. As we can see in Figures 9 and 10, both Harlan and Douglas made early and significant moves to the right, followed by change to the left. The depth of their ideological commitment was quite distinct: For his last two decades on the Court, Douglas was its most liberal member; Harlan’s liberalism never surpassed, say, O’Connor’s. Nonetheless, their trends are similar. Relative to Douglas, Chief Justice Burger’s ideal point appears to be consistently conservative, as virtually all previous analyses suggest.122 As we can see in Figure 10, however, the Chief’s ideological inclinations were more volatile than many contend. Relative to the early 1970s, Burger was significantly less likely to reveal conservative preferences in the late 1970s; but compared with the early 1980s he was significantly more right-of-center at the end of his tenure, that is, by the late Reagan years. Seen in this way our analysis presents something of a challenge to analyses that cluster Burger and his successor, Rehnquist—or, at least the Courts they led.123 While it is true, as we show in the left panel of Figure 11, that both Chiefs were more conservative than the Court’s median (typically Justice White), Burger was considerably more moderate than Rehnquist. In fact, though much has been made, and rightfully so, about the growing rift between the boyhood friends from 118D. Wes Sullenger, Burning the Flag: A Conservative Defence of Radical Speech and Why It Matters Now, 43 Brandeis L.J. 597, 619 (2005). 119David O. Stewart, White to the Right?, A.B.A. J. July 1990, at 40 (arguing that Justice White assumed more conservative positions over time); David D. Meyer, Justice White and the Right of Privacy: A Model of Realism and Restraint, 52 Cath. U.L. Rev. 915 915 (2003) (“popular accounts” portray “White as the increasingly conservative curmudgeon on matters of individual liberty, wielding traditional morality or his own crusty predilections to repel the claims of modern society”); Jeffrey Rosen, The Next Justice, New Republic, Apr. 12, 1993, at 21, 24 (White moved to the ideological right). 120Lee Epstein, Jack Knight, & Andrew Martin, The Supreme Court as a Strategic National Policy Maker, 50 Emory L. J. . 583 (2001). 121For more detail on the estimated ideal points, see supra notes 85 and 86. 122Craig M. Bradley & Joseph L. Hoffmann“Be Careful What You Ask For”: The 2000 Presidential Election, the U.S. Supreme Court, and the Law of Criminal Procedure, 76 Ind. L.J. 889, 893 (2001) (deeming Burger a “consistent conservative”); Eric M. Freedman, A Lot More Comes into Focus When You Remove the Lens Cap, 81 Iowa L. Rev. 883, 968 (1996) (“Chief Justice Burger and his conservative colleagues clearly wished to tighten legal controls on obscenity”); Mark V. Tushnet, The Supreme Court and Race Discrimination, 1967-1991: The View from the Marshall Papers, 36 Wm & Mary L. Rev. 473 (“Chief Justice Burger, of course, had more conservative instincts than many of the Justices on the Court when he arrived.”). 123Charles M. Lamb, Chief Justice Warren E. Burger: A Conservative Chief for Conservative Times, in The Burger Court: Political and Judicial Profiles 129, 132 (Charles M. Lamb & Stephen C. Halpern eds., 1991); Rebecca E. Zietlow, To Secure These Rights: Congress, Courts and the 1964 Civil Rights Act 57 Rutgers L. Rev. 945, 990 (2005) (“the Court took a more conservative turn under the leadership of Burger and Rehnquist”). But see Frank B. Cross & Stefanie Lindquist, The Decisional Significance of the Chief Justice, 154 U. Pa. L. Rev. 1665, 1685 (2006) (“Justice Rehnquist is regarded as more conservative than Justice Burger). 26 -6 -6 2 -2 2 2 6 6 1990 1990 00 2000 Term Term Justice Breyer Justice Breyer -6 -2 2 6 35 1935 4 1945Term Murphy Justice Murphy -6 -2 2 6 5 1955 6 1965 7 1975 8 1985Term St wart Justice Stewart -6 -2 2 6 1990 2000Term Thomas Justice Thomas Figure 12: Estimated ideal points of justices serving ten or more terms between 1937 and 2005 and who remained relatively stable during their service on the Court. The vertical axis in all plots is the justice’s esti- mated ideal point. Higher values are more conservative. The dots are the estimated ideal points and the vertical error bars in each plot are 95% credible intervals. 126 the right, Thomas can declare victory. In the 2004 term Scalia was nearly as close to Rehnquist as he was to Thomas who clearly anchored the extreme right; and in 2005, Scalia was further from Thomas than Alito128 Stewart and Breyer are the remaining justices who fail to exhibit much in the way of preference change. Juxtaposed against Thomas and Murphy, the two held more centrists ideal points. At the time of his retirement, Stewart’s pivotal role on the Court moved to the fore, leading to speculation about the extent to which his eventual replacement, O’Connor, would push the Court to the right.129 Justice Breyer, while never finding himself in the Court’s center, is hardly an extremist in the mold of a Murphy or Thomas. During the 1994-2004 terms, a period of stability in the Court’s membership, Breyer supported litigants alleging an abridgment of their rights or liberties in about 60 percent of the 473 cases; that figure for Stevens, the most liberal justice during those terms, was 128See infra Figure 19. 129Steven R. Weisman, Reagan Nominating Woman, NY Times, July 8, 1981, at 1A. (“White House officials were hopeful that Judge O’Connor’s appointment could be historic not only because she is a woman but also because her presence on the Court, as a replacement for Associate Justice Potter Stewart, who was often a swing vote between ideological camps on the Court, could shift the Court’s balance to the right.”); Stuart Taylor, Jr., Rather an Unknown, NY Times, July 8, 1981, 13A (“it appears to be far too early to determine whether the ideologically divided Court will become more conservative or more liberal if Judge O’Connor fills the vacancy created by the retirement of Justice Potter Stewart, who has been viewed as a moderate leaning to the conservative side of the Court’s delicate philosophical balance.”); David S. Broder, Doing Justice to the Poor, Wash. Post, June 24, 1981, A21 (“The fact that the President, who does not see any compelling need for the continuation of the Republican-created program of legal services for the poor, is the same President who will soon be filling Potter Stewart’s ”swing seat” on the Supreme Court is something to give you pause.”) Worth noting is that Stewart himself rejected the title “swing justice.” When asked at a news conference before his retirement, “You are regarded as a ‘swing’ Justice, one whose opinions are not easily predictable. Do you think you should be succeeded by someone like that?” Stewart responded: “I’ve never thought of myself as a swing Justice. I’ve thought of myself as deciding every case correctly, and I’ve never thought in terms of putting a label on myself.” Excerpts from Stewart’s Session with Reporters, NY Times, June 20, 1981, at 9. 29 over 70.130 A term later, in 2005, Justice Breyer again found himself in the liberal wing, though its most moderate member.131 IV The Implications of Ideological Change The patterns revealed in Figures 5, 7, and 9, however disparate, are conclusive in one im- portant regard: They cast serious doubt on the commonplace assumption of stable preferences among Supreme Court justices. At least for justices serving since 1937, ideological drift was not only possible, it was likely. Of the 26 justices we examined only four did not exhibit significant fluctuation. Certainly the patterns of change differ. While the plurality shifted to the left, a consequential number moved to right or swung back and forth. Further, change appears to occur at different points in the justices’ careers. More than a few exhibit what political scientists call, alternatively, the “first- year,” “freshman,” or “newcomer” effect; that is, an initial period of volatile or uncharacteristic behavior followed by stability in preferences.132 Earl Warren may fall into this category. After his first term or so, he moved to the left—and never turned back. These patterns deserve consideration, as does the question of what precipitated the observed changes. In other words, apart from idiosyncratic factors—such as Blackmun’s rift with Burger— can we identify any underlying, and universal, explanations of change on the Court? We have hinted at some throughout this article, chiefly the political environment in which the justice operates. Is it a coincidence that Chief Justice Burger’s most liberal terms came while Jimmy Carter, the only Democratic President during Burger’s tenure, was in office; and that his most conservative overlapped with the Reagan years? Likewise, researchers have speculated that both Justices Black and White may have engaged in “strategic adaptation”: the former moved to the right during the Nixon presidency; the latter grew more liberal when Kennedy and Johnson were in office and increasingly conservative during the Nixon and Reagan years.133 Additional explanations abound,134 and we certainly commend to others the task of exploring them. For now we focus on the implications of our findings—implications that require only evidence of change to develop, and not an underlying causal explanation (assuming one exists). Returning to our earlier discussion, we see two as particularly intriguing: the consequences of change for the appointment of justices and for doctrinal change. The first implicates the timing of ideological drift and the second, its importance. 130Computed using Spaeth, supra note 35, with dec type=1, 6, or 7; analu=0; and value ≤ 6. 131See infra Figure 19. 132See, e.g., J. Woodford Howard, Justice Murphy: The Freshman Years, 18 Vand. L. Rev. 473 (1965); Timothy M. Hagle, “Freshman Effects” for Supreme Court Justices, 37 Am. J. Pol. Sci. 1142 (1993); Terry Bowen & John M. Scheb, II, Reassessing the “Freshman Effect”: The Voting Bloc Alignment of New Justices on the United States Supreme Court, 1921-90, 15 Pol. Behavior 1 (1993). 133See Epstein, et al., supra note 120. 134These include context (the justices push and pull each other to the right or left), public opinion (the justices fluctuate in line with the public’s ideological mood), election returns (the justices follow the election returns), and the “(Linda) Greenhouse” effect (justice move to the left to win the approval of the New York Times’s Supreme Court reporter). See, e.g., Ruger, supra note 10; Baum, supra note 112; Ulmer, “The Longitudinal Behavior of Hugo Lafayette Black,” supra note 44; Epstein, et al., supra note 46. 30 A The Appointments Process and the Timing of Change Why the appointment of Supreme Court justices is now, and always has been, a process rife with political considerations is a question with many answers. But surely one, as we noted earlier, is the belief among all the relevant actors—the President, senators, interest groups, and the public—that their choice is particularly weighty. “Because it is nearly impossible to remove a justice, we must go to lengths to ensure the appointment of the right person, that is, the justice who shares our ideological commitments, and will for the foreseeable future.” Or so the calculus goes. What our results suggest is that predicting the future ideology of any given nominee may be a risky business, but how risky? That is to say, we know predictions about the long-term ideology of justices may be highly uncertain in the presence of change. But suppose the relevant political actors are interested in appointing justices who will reflect their ideological values for, say, a decade. Is it possible to make accurate forecasts? Succinctly, are the changes we observe in Figures 5, 7, and 9 more likely to occur later, rather than sooner, in a justice’s tenure? As it turns out, the news for political actors is mixed. On the upside, senators and the President can be reasonably certain that the justice they appoint will behave in line with their expectations— at least during the justice’s first term in office. Nicely making this point is Figure 13, which plots the results of comparing the justice’s first- and tenth-term ideal point estimates (see Figures 5-12) with newspaper editors’ assessments of the justices’ ideology at the time of appointment (see Figure 1).135 The closer a justice is to the line, the better the initial ideological assessment corresponds to the justice’s first- (left panel) or tenth- (right panel) term revealed preferences. 135To derive Figure 13 we use linear regression to predict the Martin-Quinn estimates of justices in the first and tenth terms using newspaper editors’ assessments of the justices’ ideology at the time of appointment (see Figure 1). The table below presents the results (standard errors are in parentheses); a visual depiction of this relationship appears in Figure 13. First Term Tenth Term Intercept 0.386 0.367 (0.193) (0.276) Predicted Ideal Point 1.602 1.464 (0.294) (0.427) n = 28 n = 26 Residual standard error = 1.021 Residual standard error = 1.402 31 1970 1980 1990 0. 0 0. 5 1. 0 Justice Blackmun 1994 1998 2002 0. 0 0. 5 1. 0 Justice Breyer 1970 1976 1982 0. 0 0. 5 1. 0 Justice Burger 1950 1956 1962 0. 0 0. 5 1. 0 Justice Clark 1994 1998 2002 0. 0 0. 5 1. 0 Justice Ginsburg 1990 1995 2000 2005 0. 0 0. 5 1. 0 Justice Kennedy 1970 1980 1990 0. 0 0. 5 1. 0 Justice Marshall 1985 1995 2005 0. 0 0. 5 1. 0 Justice O'Connor 1972 1978 1984 0. 0 0. 5 1. 0 Justice Powell 1990 1996 2002 0. 0 0. 5 1. 0 Justice Souter 1975 1985 1995 2005 0. 0 0. 5 1. 0 Justice Stevens 1954 1960 1966 0. 0 0. 5 1. 0 Justice Warren 1940 1950 1960 1970 0. 0 0. 5 1. 0 Justice Black 1946 1950 1954 0. 0 0. 5 1. 0 Justice Burton 1940 1950 1960 0. 0 0. 5 1. 0 Justice Frankfurter 1954 1960 1966 0. 0 0. 5 1. 0 Justice Harlan 1942 1946 1950 0. 0 0. 5 1. 0 Justice Jackson 1940 1950 0. 0 0. 5 1. 0 Justice Reed 1990 2000 0. 0 0. 5 1. 0 Justice Scalia 1992 1996 2000 2004 0. 0 0. 5 1. 0 Justice Thomas 1960 1970 1980 1990 0. 0 0. 5 1. 0 Justice White Figure 14: The probability that a justice is more liberal or conservative in subsequent terms than in their first term. The vertical axis denotes the estimated probability. If the solid line in each panel is above the top dashed line, then the justice is significantly more conservative. If that line is below the bottom dotted line, then the justice is significantly more liberal. The vertical line within each panel represents the tenth term of service. The top grouping shows justices who were significantly more liberal by their tenth term relative to their first; the second grouping, significantly more conservative. We exclude the three justices (Bren- nan, Murphy, and Stewart) who were neither significantly more liberal nor conservative by their tenth year compared to their first. We also ex- clude the two justices who were both more liberal and more conservative (Douglas and Rehnquist) (for their displays see infra note 140). 34 Relative to their first year, all but three justices (Brennan, Murphy, and Stewart) were signifi- cantly more liberal or conservative by their tenth year.140 Certainly, in some instances the observed trends are fairly trivial; for example, compared to his first year, Justice Kennedy was more liberal by his tenth but the effect dissipates shortly thereafter. Also, to be sure, some Presidents would not have objected to the drift exhibited by their justices. Scalia is a prime example. We can hardly imagine his appointing President, Ronald Reagan, arguably the most conservative President of the 20th century,141 complaining about Scalia’s rather quick, significant, and enduring turn to the right. Nor do we suspect that Thurgood Marshall’s move to the left would have disturbed Lyndon Johnson, among the most liberal Presidents of the last five decades.142 For other justices, however, the change was neither trivial, nor one that the appointing Presi- dent would have applauded. Chief Justice Warren illustrates both points. When Eisenhower nomi- nated him was to fulfill a campaign—not exclusively to advance his ideological agenda—neither the President nor the press deemed the new chief an extreme liberal; indeed, the editors’ initial char- acterization of Warren was almost identical to their assessment of the moderate Potter Stewart.143 In his first term, Warren lived up to expectations: His ideal point estimate puts him closer to the center of the Court (Justice Clark) than to the then-extreme liberals Douglas and Black. Note too how close Warren is to the line in Figure 13 indicating that newspaper editors of the day rather accurately forecast his first year behavior. But few predicted what would happen next; relative to his first term, Warren was significantly more liberal in all others. Justice O’Connor may provide an even more interesting case, and one not atypical in our data. Up until she reached about the ten-term mark, the difference between the preferences she revealed in her first year and all others was inconsequential. Thereafter she made a slow and gradual move to the left, never to return to the high level of conservatism she exhibited during the years Ronald Reagan, her appointing President, served. To think about it another way, if Reagan officials believed O’Connor would retire after a decade of service, their choice was safe: the justice they nominated and the justice who served were ideologically identical. But, as know, O’Connor remained on the Court another fifteen years, during which time she moved significantly to the left. More generally, if all justices served for ten or fewer terms, preference change would be less of a concern: It was only by (or close to) the decade mark that we observe behavior significantly different than the first term for nearly ten justices. The fact of it is, however, that most contemporary justices remain on the Court far longer. Of the thirty-two justices appointed between 1937 and 2004, only seven served fewer than ten terms.144 For those in our data set, the length of tenure was, on 140As shown in the plots below, Justice Douglas and Chief Justice Rehnquist, on the other hand, were both more conservative and more liberal. 1940 1950 1960 1970 0. 0 0. 5 1. 0 Justice Douglas 1970 1980 1990 2000 0. 0 0. 5 1. 0 Justice Rehnquist 141We base this claim on Poole’s NOMINATE Common Space scores. See Keith T. Poole, Estimating a Basic Space From a Set of Issue Scales, 42 Am. J. Pol. Sci. 954 (1998). The scores are available on Poole’s website, at http://voteview.com/dwnl.htm. 142See Poole, supra note 141. 143See supra, Figure 1. 144Justices James Byrnes, Wiley B. Rutledge, Fred Vinson, Sherman Minton, Charles Whittaker, Arthur Goldberg, 35 average, 21.4 years (with a standard deviation of 7.9). Only five justices served fewer than fifteen terms—and two of the five remain on the Court.145 Given the trend toward longer terms,146 the message for Presidents, senators, and interest groups moves into relief: Those believing that they can entrench their views in the Court for the decades to come are occasionally mistaken.147 In turn, because these political actors cannot always accurately predict the future, our results may counsel against ideological appointments— at the least, ideological appointments to the neglect of other factors but especially a nominee’s qualifications and his or her ability to advance electoral goals. Let us consider each. In previous work, we demonstrated that senators (and perhaps their constituents as well) are now placing greater weight on a candidate’s ideology and less on their merit than ever before.148 Our results here ought prompt a reevaluation of that balance: While ideology can and does change with time, background credentials do not. We might even go further and suggest that for a President seeking to leave a lasting legacy to the nation in the form of justices who will continue to exert influence on the law well after he leaves office, then a nominee’s professional merit should be a crucial consideration. To be sure, some 20th century appointees thought to be lacking in the requisite qualifications went on to be great justices. But many more universally acclaimed as great justices were also universally perceived as exceedingly well qualified at the time of their nomination: Oliver Wendell Holmes, Benjamin Cardozo, William Brennan and Antonin Scalia, to name just a few. While the ideological direction of their doctrinal path may have been hard to predict over the long term, and not always to the President’s liking, their ability to influence the direction of the law, based in some part on their intellect, was not. Perhaps a bit riskier but nonetheless advisable in light of ideological drift may be a (re)emphasis on candidates who can advance the President’s or his party’s electoral interests. Of course, this was the path followed by some past Presidents, including Eisenhower with his nomination of both Brennan and Warren. Anecdotal and historical evidence, however, suggests that not since the appointment of Sandra Day O’Connor has a President placed more weight on partisan-electoral motivations than on other considerations.149 Indeed, in O’Connor’s case, Ronald Reagan was actually fulfilling a campaign promise to appoint the first female justice150—a promise his advisors thought would not only promote Reagan’s candidacy but also advance the future electoral prospects and Abe Fortas. 145The five are Justices Breyer, Burton, Ginsburg, Jackson, and Murphy. 146See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harv. J. L. & Pub. Pol’y, 770 (2006). 147Jeffrey A. Segal, et al., Buyer Beware? Presidential Success through Supreme Court Appointments, 53 Pol. Research Q. 557, 557 (2000) make a similar point about the President. They demonstrate that in the short run Presidents often succeed in appointing ideologically like-minded justices but over time “justices on average appear to deviate . . . away from the Presidents who appointed them.” 148Epstein, et al, supra note 70. 149Some might argue that George H.W. Bush’s appointment of Clarence Thomas, Clinton’s of Ruth Bader Ginsburg, and George W. Bush’s of Samuel Alito were all designed to advance partisan interests. But we suspect otherwise, and in the cases of Thomas and Ginsburg, Yalof’s account, supra note 59, supports our suspicions. In both instances, the administration considered but rejected candidates who may have been of greater value to their party’s cause. Because of its recency, no studies yet exist on the calculus behind Alito’s nomination. While we suppose it is possible that the record will eventually show that partisan concerns (e.g., appeasing the right wing) guided the selection of Alito, far more likely—given the fit between Alito’s and the President’s preferences—is that ideology was the primary motivating force. 150On October 14, 1980, Reagan promised that “one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can find, one who meets the high standards I will demand for all my appointments.” Quoted in Elder Witt, A Different Justice: Reagan and the Supreme Court (1986), 33. 36 ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● 1990 1995 2000 2005 0. 0 0. 5 1. 0 1. 5 2. 0 2. 5 3. 0 3. 5 Term E st im at ed Id ea l P oi nt S ca le Shafer Cutpoint Lawrence Cutpoint Grutter Cutpoint Figure 15: Time series plot of Justice Scalia’s estimated ideal points, 1986-2005 terms. The horizontal lines are the cut points for Grutter v. Bollinger, Texas v. Lawrence, and Shafer v. South Carolina such that points above the line indicate a probability of greater than .50 of voting conservatively; those below the line indicate a greater than .50 probability of voting in the liberal direction (as the Court did in each of the depicted cases).158 his turn to the right indicates only a marginal change in his jurisprudence. The same likely holds for Justices Brennan and Marshall—other rather extremists (though liberals) who only grew more extreme over time. For the balance of our justices, however, ideological fluctuations may well have precipitated doctrinal change of some consequence. Again, Harry Blackmun provides the most obvious case in point—with Figure 16 providing but one example. There we display his ideal points along with the estimated cutpoints for two landmark death penalty cases, Furman v. Georgia159 and Gregg v. Georgia.160 When the Court decided in Furman to strike down all existing death penalty statutes, Blackmun dissented. Given that his revealed preferences for the 1971 term were north of the Furman cutpoint line, the dissent was not a surprise. And neither, for that matter, was his concurrence in Gregg supporting the Court’s decision to uphold newly fashioned capital punishment laws. His ideal point remained above the Gregg cutpoint line. Seen in this way, Blackmun provides an example of how Presidents, allied senators and support- ing organized interests can gain short-term policy benefits from appointing ideologically compatible nominees. When Nixon nominated Blackmun to the Court, the President believed his new justice was committed to a law-and-order stance, and newspaper editors of the day agreed. In Furman and Gregg, Blackmun did not disappoint. Note, though, that by 1976 Blackmun’s ideological shift began to seep into his death penalty jurisprudence. Had the Court decided Furman in 1976, the 159408 U.S. 238 (1972). 160428 U.S. 15 (1976). 161For more detail on cut points, see supra note 157. 39 ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● 1970 1975 1980 1985 1990 − 1 0 1 2 Term E st im at ed Id ea l P oi nt S ca le Furman Cutpoint Gregg Cutpoint Figure 16: Time series plot of Justice Blackmun’s estimated ideal points, 1970-1994 terms. The horizontal lines are the cut points for Furman v. Georgia and Gregg v. Georgia such that points above the line indicate a probability of greater than .50 of voting against the defendant (as the Court did in Gregg); those below the line indicate a greater than .50 probability of voting for the defendant (as the Court did in Furman).161 probability of Blackmun upholding Georgia’s death penalty law would have fallen below .50; and had it decided Gregg after 1985, Blackmun would likely have voted to strike the new statutes. Because Blackmun moved from a rather extreme conservative to a rather extreme liberal, the effect of his ideological turnabout on doctrine is especially noticeable. But the trend need not be as dramatic as Blackmun’s for it to manifest in legal change. Chief Justice Rehnquist’s turn to the center, as we show in Figure 17, provides an interesting example. Here we display cutpoints for Lawrence, Grutter, and Shafer, as well as for Wiggins v. Smith,162 in which the Court held that the defendant’s attorney had had failed to provide effective counsel during the sentencing phase of his capital case. Observe that in neither Grutter nor Lawrence did Rehnquist’s leftward trend translate into doctrinal change: Odds are that at no point in his career would he have voted to strike the sodomy law at issue in Lawrence or uphold the affirmative action program in Grutter. And, in fact, he dissented in both cases. The two capital cases present a different picture. Had either been before the Court prior to the early 1990s, we predict that Rehnquist would have ruled for the state in both. But thereafter he had moved sufficiently to the left that the odds shifted in favor of the defendant. And, in fact, in both Shafer and Wiggins Rehnquist cast votes against the government. 162539 U.S. 510 (2003). 163For more detail on cut points, see supra note 157. 40 ● ● ●● ●●●●● ● ●●● ● ● ● ● ● ● ● ●● ●●● ●● ●●● ● ● ● ● 1970 1975 1980 1985 1990 1995 2000 2005 0 1 2 3 4 Term E st im at ed Id ea l P oi nt S ca le Lawrence Cutpoint Grutter Cutpoint Wiggins Cutpoint Shafer Cutpoint Figure 17: Time series plot of Justice Rehnquist’s estimated ideal points, 1970-2004 terms. The horizontal lines are the cut points for Grutter v. Bollinger, Texas v. Lawrence, Wiggins v. Smith, and Shafer v. South Carolina such that points above the line indicate a probability of greater than .50 of voting conservatively; those below the line indicate a greater than .50 probability of voting in the liberal direction (as the Court did in each of the depicted cases).163 2 Doctrinal Change and the Court’s Center Rehnquist’s shift is interesting if only because it is so unexpected, but its impact on the es- tablishment of precedent is far from clear. Because both Shafer and Wiggins were decided by 7-2 majorities, the Chief’s vote was likely not necessary for the creation of precedent. More gener- ally, because Rehnquist never served as the Court’s median or swing justice, even as he grew less extreme, his shift was less than consequential. Not so of the more centrists justices. Take Sandra Day O’Connor. As we already noted, over the last decade or so, O’Connor trended to the left; less obvious from our analyses, though widely acknowledged, is that O’Connor’s was the likely median (or swing) justice for over a third of her service on the Court (nine of twenty-five terms). Even more impressively, she managed to hold that crucial position for an extraordinary seven consecutive terms.164 With little doubt these two phenomena—O’Connor’s move to the left and her role as the swing justice—coalesced to produce noticeable and consequential doctrine during the latter Rehnquist Court years. Figure 18 makes the point for two cases, Lawrence and Grutter. Here we show ideal point estimates for O’Connor and for the median Justice over the last two decades. (Solid black circles indicate terms when O’Connor was the median.) We also show the cutpoints for Grutter and Lawrence. 164See Martin, et al., supra note 88. 165For more detail on cut points, see supra note 157. Note that 2005 has a black circle indicating that O’Connor was the median, as well as a triangle indicating that Kennedy moved into the median position when O’Connor departed. 41 0.0 0.2 0.4 0.6 0.8 1.0 S ep ar at io n S te ve ns S ou te r G in sb ur g B re ye r O 'C on no r K en ne dy R ob er ts / A lit o S ca lia T ho m as Estimated Ideal Point Scale Figure 19: Justices serving on the 2006 term Court, and Justice O’Connor, arrayed according to their 2005 term ideal point estimates. The vertical lines are at the mid points between contiguous pairs of jus- tices and the height of these vertical lines gives the separation between these two justices. Here we define separation as 2 × [Pr(justice i + 1 is to the right of justice i) - 0.5]. Thus, a separation of 0 indicates the justices occupy the same position and a separation of 1 indicates there is no overlap whatsoever. among the existing justices, this will come as disturbing news for supporters of affirmative action in education and, of course, a promising development for opponents. And yet, the evidence of widespread ideological drift we have offered here suggests that this status quo scenario, while not impossible, is unlikely. Far more plausible is a scenario in which at least one justice exhibits ideological fluctuation. New Court members are always prime suspects. As we have seen, it is difficult to make inferences about their long-term patterns based on their first-year preferences. But even setting aside Alito and Roberts, doctrinal change (or, in some instances, surprising stability) is possible if Kennedy continues to drift to the left. Or, more precisely, if Kennedy renews his leftward drift. As we noted earlier, while Kennedy is significantly more liberal now than in the late 1980s, his ideal point has remained relatively flat over the last decade or so. Hence, whether Kennedy has reached the zenith of liberalism or will come to resemble an an O’Connor—a justice who exhibited a gradual, though highly consequential, shift— we cannot say. What we can claim is that at least in some areas of the law, change on Kennedy’s part must be rather dramatic for it to exert influence on the course of doctrine. To return to Lawrence, the odds today are so slim of Kennedy voting in favor of at least certain kinds of laws discriminating against gays that only a seismic shift (and to the right, at that) would reverse them. In other legal areas, however, even small leftward movement on Kennedy’s part may be no- 44 ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● 1990 1995 2000 2005 0. 0 0. 2 0. 4 0. 6 0. 8 1. 0 1. 2 1. 4 Term E st im at ed Id ea l P oi nt S ca le Lawrence Cutpoint Grutter Cutpoint McCreary Cutpoint Figure 20: Time series plot of Justice Kennedy’s estimated ideal point, 1986-2005 terms. The horizontal lines are the cutpoints for Grutter v. Bollinger, Lawrence v. Texas, and McCreary County v. American Civil Liberties Union such that points above the line indicate a probability of greater than .50 of voting to strike down the program (Grutter), uphold the law (Lawrence) or allow the display (McCreary); those below the line indicate a greater than .50 probability of voting to uphold the program in Grutter (as the Court did in the 2002 term), strike down the law in Lawrence (again as the Court did in the 2002 term), or disallow the display (the step taken by the Court in McCreary).169 ticeable. For O’Connor one of those areas was affirmative action (see Figure 18), and we might say the same of Kennedy. While our current estimates place him above the Grutter cut point line, the distance between it and his revealed preferences is narrowing in much the same way as did O’Connor’s over time. In other words, should Kennedy trend left, concerns about the demise of affirmative action may dissipate. Even assuming that the two new justices prefer to overturn Grutter, the Court’s new center could preserve it, thereby generating doctrinal stability rather than change. Surprising stability also might result in yet another contentious area, religious establishment, particularly the display of religious symbols. In the 2005 case of McCreary County v. American Civil Liberties Union,170 a five-to-four Court held that the display of the Ten Commandments in county courthouses violated the establishment clause. Because Justice O’Connor was in the majority, and Justice Kennedy, in dissent,171 some commentators have suggested this is an area ripe for legal change.172 170545 U.S. 844 (2005). 171Interestingly, commentators do not regard Justice O’Connor as the swing vote in the case; they, instead, point to Justice Breyer. The reason is that on the same day the Court handed down McCreary, it also decided Van Orden v. Perry, 545 U.S. 677 (2005), in which it upheld the display of the Ten Commandments on the grounds of the Texas state capitol. Breyer was the only justice in the majority in both. See, e.g., Paul Gewitz, The Pragmatic Passion of Stephen Breyer 115 Yale L.J. 1675,1693 (2006) (“The Ten Commandments cases are especially noteworthy because Breyer ended up being the pivotal Justice in each case, providing the decisive fifth vote.”). 172Erwin Chemerinsky, The End of an Era, 8 Green Bag 2d 345, 352 (2005) (“With four Justices—Rehnquist, 45 Based on our analysis, they are not wrong. Both new justices, and Kennedy himself are above the McCreary cut point line (see Figure 20), indicating that, in all likelihood, the McCreary dis- senters would prevail if the case were reheard today. On the other hand, should Justice Kennedy renew his drift to the left, McCreary and its progeny may be in less jeopardy than some suspect. As we show in Figure 20 Kennedy’s revealed preferences are creeping promisingly or perilously, depending on one’s perspective, toward the cut point line. This is not to suggest that doctrine governing this area will remain unchanged. In fact, if Kennedy has his way, the Court will revisit the standards it uses to resolve these disputes.173 It is rather to suggest that, even with a new test, the outcomes may be less dramatically different than some predict. VI Conclusion Throughout his tenure Justice Harry A. Blackmun repeatedly told interviewers that it was the Court, and not he, who had changed.174 In 2005 President Bush asked Americans to trust him, that Harriet Miers would not change once appointed to the Court.175 And in the same year Professor David Strauss told us to disbelieve claims that John G. Roberts, Jr. would moderate upon his elevation to the high Court.176 Does the evidence bear out their claims? Yes and no. On the one hand, our results suggest that a close relationship exists between our expectations about a nominee’s ideology and the ideology they reveal during the first few term in office. Data from newspaper editorials suggested that Earl Warren and David Souter would be moderate-to-conservative in their ideological outlook, and they Scalia, Kennedy, and Thomas—eager to overrule the Lemon test and allow a much greater presence of religion in government, this is an area where Justice O’Connor’s successor could have an immediate and dramatic effect on the law.”); Marci A. Hamilton, The Establishment Clause During the 2004 Term: Big Cases, Little Movement, 2004-05 Cato Sup. Ct. Rev. 159, 184 (2004/2005) (noting that the differences between the majority and dissenters in McCreary are “stark,” and that “and the next justice of the Supreme Court, who replaces Justice O’Connor, will have the power to shift the doctrine either way.”); Marcia S. Alembik, The Future of the Lemon Test: A Sweeter Alternative for Establishment Clause Analysis, 40 Ga. L. Rev. 1171, 1207 (2006) (“Three justices, Justices Scalia, Kennedy, and Thomas have already indicated that they think the Lemon test should be overruled, and the addition of two new Justices, both sharing this view, could cause the Lemon test to turn sour.”); Christopher B. Harwood, Evaluating the Supreme Court’s Establishment Clause Jurisprudence in the Wake of Van Orden v. Perry and McCreary County v. ACLU, 71 Mo. L. Rev. 317, 348 (2006) (“The appointment of Chief Justice Roberts and Justice Alito to fill the vacancies left by Chief Justice Rehnquist and Justice O’Connor likely will alter the Court’s Establishment Clause jurisprudence and produce decisions that conform to the teachings of the accommodation approach. Last term, the neutrality approach enjoyed majority support by the slimmest of margins, and one of the supporters of that approach, Justice O’Connor, has since left the Court.”) 173Justice Kennedy has advocated a coercion test to resolve religious establishment disputes. See Lee v. Weisman, 505 U.S. 577, 587 (1992) (“It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise”); County of Allegheny v. ACLU, 492 U.S. 573, 660 (1989) (“Our cases disclose two limiting principles: government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact ’establishes a [state] religion or religious faith, or tends to do so.’”). Under this approach, he has voted to uphold (Allegheny) and strike down (Lee) practices challenged under the establishment clause. See, e.g., Cynthia V. Ward, Coercion and Choice Under the Establishment Clause, 39 U.C. Davis L. Rev. 1621 (2006); William Van Alstyne, Nine Judges, and Five Versions of One Amendment, 14 Wm. & Mary Bill of Rts. J. 17, 29 (2005) (“Justice Kennedy, while generally more disposed to the generic view common to Rehnquist, Scalia, and Justice Thomas, is nevertheless quite at odds with them when he finds evidence that government has brought some degree of ‘coercion’ to bear in its various religious preferments.”). 174See Jenkins, supra note 11. 175See supra note 24. 176Strauss, supra note 7. 46