The relationship between the Presidency and the Supreme Court has often been a rocky one. Supreme Court justices have human frailties and a lifetime of developed opinions and political leanings. It is nonsense to pretend otherwise, although all go through the sham process of claiming total impartiality during their confirmations. Perfectly aware of this reality, Presidents try to select new justices who seem to lean toward the President’s policy agenda. Then, full of hope, they launch these justices on their Court careers and then watch helplessly as events transpire. Sometimes there are surprises. Justices either reveal heretofore hidden political leanings or they find that the heady atmosphere of the highest court causes them to re-evaluate their previous beliefs.
At the same time, the country as a whole constantly changes, demographically, philosophically and technologically. This inevitably affects the justices, and properly so. The Constitution is a living document, notwithstanding the antediluvian thinking of originalists like Antonin Scalia. As times change so do standards, beliefs and expectations, and this affects both the workload of the Court and the way in which justices interpret the Constitution.
As you might expect, given the powerful effects of Court decisions, the political leanings and evolution of members have been seriously studied. One of the best and most often quoted studies is by Andrew Martin and Kevin Quinn. Using refined statistical techniques, the Martin-Quinn Score measures the ideological leanings of every justice from the term starting October 1937 to the one starting October 2013. This is graphically shown below. Note that the vertical scale and zero point are arbitrary; only the relative distance of the lines and their changes over time are significant. Each unique color represents a particular Court seat, so that transitions from retiring justices to their successors are easy to follow. Black lines designate Chief Justices, who have an outsize influence on the Court. The yellow line is an estimate of the median justice, showing how the court as a whole has evolved over time.
This graph is very revealing. Some of my conclusions are summarized below, but the overall significance seems to be that the popular conception of a static court, jarred only by periodic changes in personnel, is clearly wrong.
- With a few exceptions, the justices’ ideological leanings change over time, often significantly. Look at Owen Roberts, William O. Douglas, Thurgood Marshall, and John Paul Stevens for example. Sometimes this is more a function of the kinds of cases considered, but the bottom line is that almost all justices evolve in their thinking. Rarely do liberals turn conservative, or vice versa, but two examples of such turnarounds are Stanley Forman Reed and Harry Blackmun. And John Paul Stevens was hardly a reliable force in either direction.
- Presidents sometimes get it badly wrong or perhaps are misled. No doubt FDR was disconcerted by Felix Frankfurter’s switch to a staunch conservative. I am sure Eisenhower was upset at Earl Warren’s progressive evolution, and Bush ’41 must have been dismayed by David Souter.
- The current court consists of two Reagan appointees, one by Bush ’41, and two each by Clinton, Bush ’43 and Obama. Thus this Court trends conservative and, as the graph shows, this was a considerable and increasing trend by the end of the 2013 term. But something odd appears to have happened in the current term and I have discussed this unexpected occurrence in another post.
- Sometimes voters choose a President partially because they hope he will have the opportunity to mold the court through appointments. This often doesn’t work as well as it is supposed. One factor is that Senate confirmation can be a difficult filter on extreme choices. But occasionally, as noted above, the unexpected occurs. Nixon was able to select Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. This is more that most Presidents can accomplish. His choices were predictably conservative but not really reliably so, and they hardly changed the median justice line at all.
- There are four current justices who are over 77, two Reagan appointees and two by Clinton. Thus, the next President will very likely change the Court’s predominant ideology, but exactly how may be a surprise to us and perhaps even to him (or her).