on why some conservative justices stray, and more
|Ed Whelan email@example.com via gmail.mcsv.net||10:38 AM (2 hours ago)|
From NRO’s Bench Memos:
By ED WHELAN
July 10, 2020 11:17 AM
In a recent Washington Post op-ed that bears the same title as this post, Harvard law professor Adrian Vermeule undertakes to explain “a basic asymmetry: While conservative justices often break ranks to give liberals a 5-to-4 majority, liberal justices rarely do the same in reverse.” In this post, I’d like to comment on Vermeule’s observations and also build on them to explain why the process of selecting and confirming Supreme Court justices has reinforced this asymmetry.
Let’s start with Vermeule’s account. Vermeule considers and rejects two explanations for the asymmetry and offers and embraces a third. The first explanation that he rejects as “suspiciously partisan” is that liberal justices are “systematically less principled.” But since the progressive “living constitutionalist” approach to constitutional interpretation has no discernible principles, I’m not persuaded that this explanation can be so readily dismissed.
The second explanation that Vermeule rejects is that “swing justices are not following the written law but their own personal preferences or individual self-interest” and that “they are overwhelmed by the political, social and cultural pressures of the left-elite milieu, especially the praise or censure of the mainstream media.” He finds this explanation unsatisfactory, as it “fails to explain why defections have persisted or even increased as the influence of the mainstream media has declined” and “posits either conscious infidelity to law or an implausible lack of self-awareness.” I’m not convinced that the “influence of the mainstream media has declined.” While I’m also not eager to impute to any justice “conscious infidelity to law,” I don’t think that it is at all “implausible” to believe that justices delude themselves about their acquiescence to the “political, social and cultural pressures of the left-elite milieu.”
Indeed, it seems to me that the third explanation that Vermeule embraces is—other than at the level of political theory—not very different from the second. Vermeule posits that conservative justices who defect are enforcing “our real, unwritten constitution, a set of understandings that underlies and shapes our interpretation of the law” (his emphasis) and that “embodies a liberal order”:
What are the principles underlying our unwritten constitution? It is best understood as a sociopolitical order that privileges a particular set of commitments held passionately by educated urban professionals and what Joel Kotkin and Fred Siegel have termed “gentry liberals.” Among these … are ensuring a high rate of immigration, encouraged by policies against full enforcement of the law, and protecting sexual expression and liberty, including contraception, abortion and unconstrained expression of sexual preference and gender identity. These beliefs are not spelled out explicitly in law, yet they exert a gravitational force that powerfully influences the justices’ interpretations.
My point here is not to dispute (indeed, not to take any position on) Vermeule’s theory of the “liberal order.” It is merely to observe that, debates over political theory aside, I see little or no meaningful difference between whether a conservative justice defects because he unconsciously surrenders to the “political, social and cultural pressures of the left-elite milieu” or because he allows the “gravitational force” of the “liberal order” to “skew” his decisions.
Under either of these explanations, what makes one conservative justice more likely than another to defect? One obvious variable is how genuinely conservative, as a matter of judicial philosophy, the justice is. But I’d suggest that factors of character and personality also come into play. A justice who likes to be liked, or who desires to be admired, or who is eager to go along to get along (what I’ll call Type 1) is far more susceptible to stray than a justice who is inner-directed and anchored, who doesn’t care about being popular or who is even contrary or cantankerous (Type 2). Antonin Scalia, Clarence Thomas, and Samuel Alito are all Type 2.
One unfortunate reality is that the process of selecting and confirming Supreme Court justices strongly favors Type 1 conservatives. The nomination and confirmation processes are intensely political, and the qualities of Type 1 conservatives correlate strongly with qualities that are politically appealing and salient. Advisers to the president want a Supreme Court nomination to be a short-term political victory, and same-party senators strongly prefer a light lift. A Type 1 conservative is going to be much more adept than a Type 2 conservative at charming senators, trotting out a list of liberal friends and admirers, and neutralizing a leftist media—and thus at winning the support of the president and his advisers for the nomination in the first place.
Let me offer but one of several possible examples to illustrate the point. Judge Frank Easterbrook, who has served on the Seventh Circuit since 1985, has long been admired as among the most brilliant conservative jurists. When George W. Bush became president in 2001, Easterbrook was only 52 years old. When Sandra Day O’Connor retired in 2005, he was only 56. Yet he was never on Bush’s short list for the Court. Why not? Because he is a strong Type 2.
Type 1 liberals also have an advantage over Type 2 liberals, but the media bias in favor of any liberal makes that advantage much less significant. More importantly, none of the explanations of why conservative justices defect would lead to the conclusion that a Type 1 liberal is more likel