“Every judge who’s been appointed to the court since Lewis Powell” in 1971 “has been more conservative than his or her predecessor,” Justice Stevens said in a 2007 interview. He added that Justice Ruth Bader Ginsburg might have been the sole exception but included himself as one of those 11 ratchets to the right.
Justice Stevens, who continues to be a keen and lively participant in oral arguments at the court, will turn 89 in April. Actuarial statistics alone suggest that President Obama may end up naming his replacement.
And that will present the new president with a question. Should he appoint someone who by historical standards is a full-throated liberal, a lion like Justice William J. Brennan Jr. or Justice Thurgood Marshall? Or should he follow the lead of President Bill Clinton, whose two appointees, Justice Ginsburg and Justice Stephen G. Breyer, are by those standards relative moderates?
The vacancies that are likely to open up in the early years of the Obama presidency will, if the conventional wisdom holds, arise from the retirements of one or more of the court’s liberals — Justice Stevens, Justice Ginsburg or Justice David H. Souter.
If that is so, Mr. Obama will not be able to put a new liberal vote on the court. But he can, if he wants to, add a big liberal voice.
“A really powerful, articulate, moral, passionate voice on the left,” said Geoffrey Stone, a law professor at the University of Chicago, “would really change the dynamic on the court. It would pull the other justices who are inclined to be sympathetic to that voice in that direction. It would shift the center of the discussion — about what’s the middle.”
There is precedent for this. Justice Antonin Scalia, who has been on the court since 1986, was for years a lonely and energetic dissenter on the right. But the seeds he planted in those dissents have over time taken root in majority decisions.
According to a study last year by William M. Landes, who teaches law and economics at the University of Chicago, and Judge Richard A. Posner of the federal appeals court there, four of the five most conservative justices to serve on the court since 1937, of a total of 43, are on the court right now: Chief Justice John G. Roberts Jr. and Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. The fifth was Chief Justice William H. Rehnquist, whom Chief Justice Roberts replaced in 2005.
The study took into account the votes in divided cases on ideologically charged issues like criminal procedure, civil rights and the First Amendment. Justice Thomas, the most conservative justice in the study, voted for the conservative position in those cases 82 percent of the time. Justice Marshall, the only other African-American to serve on the court, was by this measure the most liberal, voting for the conservative side 21 percent of the time.
The study also reinforced Justice Stevens’s caveat, counting Justice Ginsburg as more liberal than the justice she replaced, Justice Byron R. White. But Justice Ginsburg, whom the study identifies as the most liberal current justice, barely makes the Top 10 in the full tally.
The Roberts court is, then, conservative by the standards of recent history. But is it conservative in some absolute sense?
“It is fair to say that the Supreme Court both now and historically has been to the left of the American public,” said Nathaniel Persily, a law professor at Columbia and an editor of “Public Opinion and Constitutional Controversy” (Oxford, 2008).
“On school prayer, for instance, the Supreme Court is far to the left of the American public,” Professor Persily said, referring to decisions saying that officials may not organize, lead or endorse prayer or devotional Bible reading in the public schools.
“On racial issues, it’s pretty clear from the Michigan cases that the Supreme Court is out of step with the American public,” Professor Persily said of the pair of 2003 decisions allowing public universities to consider race in admissions decisions. (In a 2007 decision, the Roberts court leaned the other way, forbidding public school systems from explicitly taking race into account to achieve or maintain integration.)
Other areas in which the court is to the left of popular opinion, Professor Persily said, are criminal procedure and free speech. Decisions protecting flag burning under the First Amendment, for instance, were quite unpopular.
There is a structural reason for some of this. The court is charged with protecting individual rights even when majorities would deny them. In many cases, those protections resonate as liberal. But that explanation is not a complete one. The court’s recent decision saying the Second Amendment protects an individual right to own guns, for instance, cuts in the other direction.
There is a sense, however, in which popular opinion is perfectly reflected in the court’s decisions, said Sanford Levinson, a law professor at the University of Texas. In a great majority of the ideologically charged cases that reach the court, the crucial swing vote belongs to Justice Anthony M. Kennedy. And Justice Kennedy, Professor Levinson said, “may in fact be closest to the median national voter.”
In another sense, though, the terms “conservative” and “liberal” do not always track the conventional political ones when they are applied to judicial decision making.
One kind of conservative judge, for instance, defers to the democratic process and views decisions to strike down laws enacted by Congress as “judicial activism.” This kind of conservative judge might say that legislatures rather than courts should decide whether to protect abortion rights.
Another kind of conservative judge is perfectly willing to strike down laws on constitutional grounds when they may be said to violate the original understanding of the meaning of the Constitution. This kind of conservative judge might vote to strike down a law allowing eminent domain as a violation of the Constitution’s takings clause.
Still, “there is a surprising amount of ideological coherence on the court over the last 30 years,” said Christopher L. Eisgruber, Princeton University’s provost and the author of “The Next Justice: Repairing the Supreme Court Appointments Process” (Princeton, 2007). “If you tell me where a justice stands on abortion, I can tell you what that justice’s position is on affirmative action, gun control, criminal procedure, federalism and other privacy issues.”
But coherence is not the same thing as passion.
These days, Professor Stone said: “The right side is very bold and very conservative. The liberal side is not bold. They are incrementalists. They don’t set the agenda.”
The old-school liberal justices were simply more ambitious than Justices Breyer and Ginsburg, Professor Eisgruber said. “Brennan and Marshall were willing to think creatively about questions like, Could the Supreme Court take a leading role in thinking about, say, how to eradicate poverty?”
Mr. Obama’s first Supreme Court nomination will no doubt be an accomplished lawyer whose views are generally to the left of the ideological center. What remains to be seen is what sort of liberal — and what sort of liberalism — he intends to endorse.