Justices Who Change

By Linda Greenhouse

Linda Greenhouse is Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School in New Haven, Connecticut. From 1978 to 2008, she covered the Supreme Court for the New York Times.

The Supreme Court’s outlook is much more than the static views of nine individuals. A justice’s worldview evolves with the passage of time, exposure to world events, and with close personal and intellectual interaction with the other justices. The results can be unpredictable.

During the recent U.S. Senate confirmation hearing on Sonia Sotomayor’s nomination to the Supreme Court, the focus was naturally enough on what kind of Supreme Court justice she would be. Her assurance that her watchword as a judge was “fidelity to the law,” and that she saw a judge’s job as applying the facts of the case to the relevant law, satisfied most of the senators. After confirmation by a vote of 68 to 31, Sotomayor took her seat on August 8, 2009.

Her description of the job as a kind of mechanical exercise, nevertheless, begged several interesting questions. If the craft of judging is really so simple and straightforward, how do we account for the fact that during the Supreme Court’s last term, the justices decided fully a third of their cases (23 out of 74) by votes of 5 to 4? Presumably, the justices on each side of those disputed decisions thought they were being faithful to the law. But for any of a variety of reasons, they saw the law differently.

That much is both obvious and predictable; if the justices didn’t differ from one another, then the process of filling a Supreme Court vacancy would hardly be the galvanizing event in American politics that it is today.

But the mechanical description of the judicial role begged another, more elusive question about judicial behavior: how to account for the change that many, if not most, Supreme Court justices undergo during their tenure. Not uncommonly, and sometimes quite dramatically, a justice’s perspective changes. A justice may still be applying the facts to the law while coming to different conclusions about which facts really matter and which legal precedents provide the right framework for the decision. A president may believe correctly that he has found a Supreme Court nominee who shares his priorities and outlook on the law. But years later, perhaps long after that president has left office, that nominee, shielded by life tenure, may well become a very different kind of judge. Examples are legion. Here are just a few.

From Presidential Authority to Affirmative Action

When Robert H. Jackson, attorney general in the administration of President Franklin D. Roosevelt, took his seat on the Supreme Court in 1941, he was a strong advocate of presidential power. Early in his tenure, shortly after the United States entered World War II, the Court decided an important case on the dimensions of the president’s wartime authority. The question in this case (Ex parte Quirin) was the validity of the military commission that tried and sentenced to death eight Nazi saboteurs who had been caught trying to enter the country.

The Court upheld the procedure and outcome, but Jackson, in an unpublished opinion that came to light only years later, would have gone further. The saboteurs were “prisoners of the president by virtue of his status as the constitutional head of the military establishment,” he wrote, suggesting that the Court should not even have undertaken to review Roosevelt’s exercise of his authority.

Few people would have predicted that just 11 years later, Jackson would take a very different position in one of the most famous of all Supreme Court decisions on the limits of presidential authority. During the Korean War, the country’s steel mills were shut down by a strike, cutting off production of weapons and other important items.

President Harry S. Truman ordered a government seizure of the steel mills. The Supreme Court declared the president’s action unconstitutional (Youngstown Sheet & Tube Co. v. Sawyer). Jackson agreed, in a concurring opinion that the Court has cited in recent years in decisions granting rights to the detainees in the U.S. prison at Guantanamo Bay, Cuba. A president cannot rely on the unilateral exercise of executive power, Jackson said; the Court would not rubber stamp presidential actions taken in the absence of authorization by Congress but would evaluate them in context to see whether the president’s claim of power was legitimate.

Barely a decade on the Court had transformed Robert Jackson from one of the presidency’s strongest defenders to one of the most powerful advocates of limits on presidential authority.

President Dwight D. Eisenhower named a political rival, Governor Earl Warren of California, as chief justice. Warren had spent 23 years as a local prosecutor and state attorney general, and during his first term on the Court, 1953-1954, he voted most of the time against criminal defendants and against people who claimed that their civil rights were being violated. But over the next 15 years, he became a champion of criminal defendants and civil rights plaintiffs, and the Warren Court is known for its expansive interpretation of the rights of both.

The career of Justice Byron R. White, named to the Court by President John F. Kennedy in 1962, illustrates a modern example of a justice who became more conservative over time. He grew disenchanted with the pro-defendant rulings of the Warren Court and did what he could to limit the scope of the famous Miranda ruling, which invalidated the convictions of defendants who had not been read a list of their rights in advance of being questioned by the police. A majority opinion he wrote in 1984 (United States v. Leon) placed the first important limitation on the “exclusionary rule” that had long required courts to exclude incriminating evidence that the police had obtained improperly.

Justice Sandra Day O’Connor was a Supreme Court selection of President Ronald Reagan.

Justice Harry A. Blackmun was named to the Court in 1970 by President Richard M. Nixon, who had vowed during his 1968 campaign for the White House to find “law and order” justices who would reverse the rulings of the Warren Court. Early in his tenure, Harry Blackmun seemed to fill the role perfectly. He dissented in 1972 from the Supreme Court decision that invalidated all death penalty laws in the country, and he joined the majority four years later when the Court upheld new laws and permitted executions to resume. In 1973 he wrote in a majority opinion that requiring payment of a $50 fee to file for bankruptcy did not violate the rights of poor people. This decision (United States v. Kras) outraged one of the most liberal justices, William O. Douglas, who complained, “Never did I dream that I would live to see the day when a court held that a person could be too poor to get the benefits of bankruptcy.”

Yet only four years later, Blackmun was arguing strenuously in dissent that the government should pay for abortions for women who were too poor to afford them. By the end of his Supreme Court career, in 1994, he was an avowed opponent of capital punishment and was widely considered to be the most liberal member of the Supreme Court.

Justice Sandra Day O’Connor, the first woman on the Supreme Court, named by President Ronald Reagan in 1981, was also reliably conservative in her early years. She was highly critical of Roe v. Wade, the 1973 Supreme Court decision that established a constitutional right to abortion. She also was skeptical of government programs that gave preferences in hiring or in public works contracts to members of disadvantaged minority groups. Yet in 1992 O’Connor provided the crucial fifth vote that kept Roe v. Wade from being overturned (Planned Parenthood of Southeastern Pennsylvania v. Casey). And in 2003 she wrote the Court’s majority opinion that upheld an affirmative action program that gave an advantage to black applicants for admission to a leading public law school at the University of Michigan (Grutter v. Bollinger).

A Transformative Experience

How common are such profound shifts? More common than most Americans realize. Professor Lee Epstein of Northwestern University Law School in Chicago has studied the history of what she calls “ideological drift” among Supreme Court justices. In a 2007 article on her findings, she observed, “Contrary to received wisdom, virtually every justice serving since the 1930s has moved to the left or right or, in some cases, has switched directions several times.”

[https://www.law.northwestern.edu/journals/lawreview/colloquy/2007/8]

The intriguing question is why this happens. Supreme Court justices, after all, arrive at the Court as mature adults, often quite prominent in public life — not the sort of people, in other words, who are still finding their way.

Robert Jackson posed the same question in a book he published shortly before his own appointment to the Court. Writing as a close student of the Court, he asked in The Struggle for Judicial Supremacy, “Why is it that the Court influences appointees more consistently than appointees influence the Court?” In other words, his own observation told him that the bare fact of serving on the Court was a transformative experience. His own experience would prove unique: He took a year off from his Supreme Court duties to serve as the chief prosecutor at the Nuremburg war crimes trials. Is it fanciful to suppose that his close examination of the effects of unbridled executive power in Nazi Germany influenced his thinking about the need for limits on presidential authority?

Harry Blackmun underwent a different kind of transforming experience. He wrote the opinion in Roe v. Wade, an opinion that spoke for a 7-to-2 majority and that came to him not by his choice but by assignment from Chief Justice Warren E. Burger. Nevertheless, the public quickly attached the abortion decision to Blackmun personally. He received hate-filled letters by the tens of thousands from those who opposed the decision and was greeted as a hero by those who supported it. As a result, his own self-image became inextricably connected to Roe v. Wade and to its fate in an increasingly hostile atmosphere, and it is possible to trace his liberal evolution to his self-assigned role as the chief defender of the right to abortion.

Several recent studies have found that those justices most likely to migrate from their initial ideological outlooks are those who are newcomers to Washington rather than “insiders” familiar with the ways of the capital. This observation has commonsense appeal: A mid-life move to Washington, under a national spotlight, has to be an awesome experience that may well inspire new ways of looking at the world. Professor Michael Dorf of Columbia Law School has found in studying the last dozen Republican nominees to the Court that those who lack prior experience in the executive branch of the federal government are most likely to drift to the left, while those who have such experience are not likely to change their ideological outlook.

That also makes sense: Those with executive branch experience, typically a prominent legal position in the White House or Justice Department, have paid their dues and are known quantities. Warren Burger and William H. Rehnquist, the last two chief justices, fit that model; both had served as assistant attorneys general. Chief Justice John G. Roberts Jr., who served as a young lawyer in the White House and as a senior lawyer in the Solicitor General’s Office in the Justice Department, appears highly likely to fit it as well. After four years, he remains staunchly conservative, with no sign of “drift.”

But with the average tenure of a Supreme Court justice now at 18 years, the timeline is a generous one. Epstein’s analysis of Sandra Day O’Connor’s voting patterns over a 24-year career shows that as late as 2002, O’Connor would predictably have voted to strike down the same University of Michigan affirmative action program that she in fact voted to uphold the next year. O’Connor herself has spoken warmly of the influence she felt from Justice Thurgood Marshall, with whom she shared her first decade on the bench. A great civil rights crusader and the country’s first black Supreme Court justice, Marshall would often illustrate legal points with stories from his own life — stories that “would, by and by, perhaps change the way I see the world,” as O’Connor wrote in a tribute after Marshall’s retirement in 1991.

Although Sonia Sotomayor was a federal judge in New York for 17 years, she comes to Washington as a stranger. Will she fit the pattern and drift from her initial premises? It is, of course, too soon to tell — but O’Connor’s comment about Marshall’s influence suggests another possibility. Sotomayor, the Court’s first Latina justice, raised by a single mother in a public housing project, may have her own stories to tell her eight new colleagues. Perhaps, rather than the other way around, she will be the one to change the way they see the world.

The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.

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