Slate's Jurisprudence: High Court Liberal Drift?

Madeleine Brand chats with Slate legal analyst Dahlia Lithwick about whether Supreme Court justices tend to drift toward a more liberal ideology during their time on the bench, and how such a tendency may already be apparent in Supreme Court nominee John G. Roberts.

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MADELEINE BRAND, host:

This is DAY TO DAY. I'm Madeleine Brand.

In a few minutes, a car straight out of James Bond, the Amphicar, for ordinary drivers.

But first, Supreme Court nominee John Roberts is, by all accounts, a card-carrying conservative. But so were a lot of judges before they made it to the Supreme Court. Once there, they tend to drift closer to the other side, according to Slate and DAY TO DAY legal correspondent Dahlia Lithwick. I spoke with her earlier.

Dahlia, so what does it mean when pundits describe Supreme Court justices as more inclined to drift to the liberal wing than the conservative wing?

DAHLIA LITHWICK reporting:

I think it means two things. I mean, one is there is a very well-documented trend of sort of people who are confirmed as rock-ribbed Republicans who do drift from those positions over a career to the left. But I think more than that, there's a tendency for people who were supposed to sort of hew to the Scalia-Thomas party line who simply become more moderate, and they're sort of decried by the political right as having drifted to the left, so I think it's worth separating them. Most famously Earl Warren, who was supposed to be the sort of crowning glory of the Eisenhower administration, and Eisenhower later described appointing Earl Warren to the court as, quote, "the biggest damn-fool mistake I ever made." But he's been followed by people like William Brennan, Harry Blackmun, David Souter, Anthony Kennedy, Sandra Day O'Connor, each of whom has proved a real disappointment to the political right.

BRAND: And then, but of course, you've got the diehards, the Scalias, the Thomases.

LITHWICK: That's true. I mean, I think one of the things that's interesting is to tease out why some Republican appointees stay quite far to the right and others tend to drift to the middle. But one political theorist says that as many as one quarter of all confirmed justices in the past 50 years has, in fact, drifted quite far to the left over the course of career, so that's a substantial trend.

BRAND: Well, why don't they drift rightward?

LITHWICK: Well, I should offer these theories with the caveat that none of them seems very satisfying to me, but here they are. One is the idea that there is this, quote, "Greenhouse effect," that justices, once confirmed, sort of try to tweak their own ideologies to garner the praise and approval of Linda Greenhouse, The New York Times Supreme Court reporter, or more broadly, The Washington Post and New York Times op-ed pages. So there's that theory.

There's another theory that has a lot to do with the interpersonal relationships on the court. The shorthand of it is that Antonin Scalia is so rude and so vicious in his attacks that he pushes people like Anthony Kennedy and Sandra Day O'Connor further to the left.

There's a theory that these justices all hire law clerks from liberal, elite Ivy League institutions and the law clerks push them to the left.

And then there's the sort of grandiose theory that they simply evolve over time, that over one's career one becomes more broad-minded, more tolerant, more willing to look out for the little guy. Again, I don't know that that's true. My experience is people tend to become much more conservative over time. But certainly liberals like to say that people like O'Connor and Kennedy have drifted to the middle because they've sort of found their heart after all these years.

BRAND: Well, you know, it's kind of interesting to think that these justices who, you know, we put into this lifetime position are influenced by outside forces such as the op-ed pages of The New York Times or even their lowly clerks.

LITHWICK: I don't think there's any question that justices are influenced by outside forces, and I think it's probably naive to think that they simply operate in a bubble. But I'm not sure that they triangulate exclusively based on op-ed pages, and certainly the myth that all of the media is left-leaning is simply not true. In other words, I think there could be as much of a Limbaugh effect as a Greenhouse effect.

BRAND: So based on any of these theories--pick one--which way would Roberts go? Would he actually drift further to the left, or would he stay more in the Scalia-Thomas camp?

LITHWICK: It's interesting. Certainly that's the great anxiety on the far right is that he looks like he's going to be a drifter, and it's the great hope of the far left is that he looks like he's going to be a drifter. And again, there's no way to gauge this. My own impulse is that this is a guy who, A, is very confident, very sure of his ideas, and not inclined to be sort of yanked around by external forces. He also, I think--you know, you have to recognize he came up through the executive branch. He's been an advocate for these positions for a long time. He's not like some of the justices who came out of academia or off the bench. He's been strongly advocating these views for a long time, and so may be less likely to drift.

And I also wouldn't underestimate the influence of his religion, that Scalia and Thomas, one of the reasons they may not have drifted leftward has a lot to do with very, very strong religious views that pull them to the right. And I think that probably John Roberts will fall into that camp in that sense.

BRAND: Opinion and analysis from Dahlia Lithwick. She's the legal analyst for the online magazine Slate and for us here at DAY TO DAY.

Thanks, Dahlia.

LITHWICK: My pleasure, Madeleine.

BRAND: More coming up on DAY TO DAY from NPR News.

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