She discussed various predictors (attributed to various scholars) regarding ideological movement, including whether the justice is new residents to the DC area (those who have prior DC experience are less likely to change their positions in the context of DC culture), whether the justice has prior executive branch experience (those with prior experience are less likely to change their ideology), and any life-changing events that the justices have experienced (e.g. Justice Thomas's confirmation hearings). She indicated that Justice Thomas is unlikely to become more liberal over time because his defenders on the right during his confirmation hearings so firmly anchored him to that ideology. Her conclusion seemed to be that Justices Roberts and Alito are unlikely to change their ideological stances over time based on the first two tests (both have prior DC experience and both worked in the executive branch)....Maybe it's for the law professors.
On the idea that justices become more liberal as they get older because they're tired of being criticized in the media and they want people to write nice things about them: "You're referring to the Notorious Greenhouse Effect." "This is the idea that justices become more liberal as they get older because they want the east coast liberal media, such as the New York Times, to write nice things about them in their obituaries." She was skeptical of this as an explanation for ideological movement.
May 25, 2007
"You're referring to the Notorious Greenhouse Effect."
David Lat has notes on a law firm lunch talk given by Linda Greenhouse.
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Or maybe their ideology is based upon the tragic view of human nature.
Readers may be interested in a piece Greenhouse had in Northwestern Colloquy a couple of months ago that covers much the same ground, and probably served as the basis for this speech.
I used to think justices grew more liberal with age as their testosterone production withered. Since Sandra Day O'Conner I have expanded the theory to encompass a drying up of all precious bodily fluids.
The desire to be accepted at DC parties is just as insidious as the media in making the justices abandon the Constitution.
That's true, jake, but I don't want to trivialize that overmuch. It is not just "parties," but the everyday actions we have with those around us. It is easier to disagree with people who are not present. We all play to an audience - to God, to the person in the mirror, to the ghosts of family and teachers, to friends, posterity...
This is not to say that we should not expect justices to be far better than the average among us on this score, by both temperament and training. But neither should we underestimate the subtlety and difficulty.
I think there is a simpler explanation. A lot of it depends on what social circles the Justices end up in. No one wants to become an outcase from their existing social circles. Imagine Justice Ginsberg hanging out with her NOW buddies after voting to ban Roe v. Wade. There is no way.
I worked in DC, if you are in with Republicans you don't generally hang out with Democrats - that's the way it is and vis-a-versa. Your friends and social groups become those in the same party. Republican appointed judges who had no prior job or social group in DC (Souter, OConner, Kennedy, Stevens) have all tilted to the left. They came in with a clean slate and did not have a prior Republican dominated social circle in DC. Their social circle was created after they became Judges or Justices, thus they were free to be aloof. In contrast, the ones who had previously worked in DC have stayed consistent (i.e. Thomas, Rehnquist, Roberts, Alito, Ginsberg, Scalia, Breyer).
The secret, appoint someone from your party who is anchored in DC and has a pre-existing social group of like minded people. DONT APPOINT SOMEONE FROM OUTSIDE DC!
I argued that Harriet Miers would stay conservative precisely for this reason. Miers had been in DC for five years. Her social group was other evengelical conservative Christians - they same group she had been with for 25 years in Texas. Miers was 60+. There is no way Miers was going to get a new group of friends. Therefore, there was no way she was going to all of a sudden rule in favor of Roe v. Wade or lean left in any way on the Court.
Ah, NOW I see where my distrust of the Global Warming theory comes from. It's the subliminal effect of my dislike of Ms. Greenhouse.
This is a fascinating discussion, and it seems to support something I have suspected for a long time: that the DC culture has more of an impact on the justices' jurisprudence than any amount of legal acumen, unless they're very firm-minded. I wouldn't send a child of mine to an Ivy League school for the same reason. Only the most determined can hold out against the prevailing political climate for long.
Maybe it IS time to impose term limits on Justices.
Sloan,
The problem with that theory is that it isn't reflected in what's actually happened. If it were true that Kennedy and Souter drifted left having moved to D.C., I might agree with you, but there's nothing to indicate they did, and JCG's book makes clear that there were several people in the Justice Department who knew exactly what kind of justice Tony Kennedy would make, which is why they did everything possible to prevent his nomination. And in Souter's case, even if he arguably moved left (which is itself a highly dubious point), Souter notoriously DOESN'T AND DIDN'T engage with the DC social circuit. Harry Blacmun moved left because he was never all that conservative in the first place and was driven left when he was defrocked by the right after Roe. What other examples have you?
Good googly-moogly!
Is the inference here that 'party invitations/night life', in DC, defines what you believe?!
If so, let me expand my quote:
"It is an indictment of a person's character, who wants to be a politician." -M. Kitchen
to:
"It is an indictment of a person's character, who wants to be a politician (or a lawyer)." -M. Kitchen
Simon, my point is that if you are already a Justice before acquiring your social group, the social group you acquire is going to be a lot less partisan than the one you would have had before. Because Souter, OConner, and, kennedy had no prior social group in DC rooted in conservatism, they were free to drift. In Souter's case, his social group (if he has any at all) became Blackmun's because he hit it off with Blackmun right way.
It is also interesting to note that Blackmun, who was a turn-coat, also never lived in DC before he was appointed. It is also well known that Blackmun and Warren Burger became bitter enemies after Blackmun started switching left... thus proving that in DC, you really only run with those you agree with.
As we grow older, we wise up, particularly if we devote a thousand hours a year to law. So Supreme Justices acquire a deeper and more useful understanding of the law, particularly the Constitution.
"The idea that she of all people would speak up is supposed to give dramatic weight to her opinion in the cases." It should; previously, she has deliberately avoided limelight more than any other justice.
"The fact that her opinion supports the interests of women may -- for some people -- eclipse this other matter of concern to women, and I want to drag it back into the light." Yet, why not discuss the issues she addressed, rather than making what you yourself seem to regard as a minor (and I would say mistaken) point?
"Justice Ginsburg is a strong, accomplished jurist who is and has always been the equal of the other Justices." And more so, I would say.
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