Veering Left: The Art of Judicial Evolution

Conservatives suspect that some Supreme Court justices are overly attentive to elite opinion

Republican presidents have picked seven of the nine current Supreme Court justices. But as the Court demonstrated so dramatically last month by blessing both gay rights and racial preferences, the result has been nothing like the "conservative Supreme Court" the media often depicts.

Four of these seven—Justices John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy, and David H. Souter—voted to strike down criminal laws against homosexual sodomy. All but Kennedy also voted to uphold racial preferences in university admissions. In these and other cases, Stevens and Souter are regular allies of Bill Clinton's two appointees, Ruth Bader Ginsburg and Stephen G. Breyer. And O'Connor or Kennedy, or both, join this liberal bloc often enough to put the Court consistently to the left of center of public opinion on the biggest social issues, including abortion rights and religion as well as gay rights and preferences. Examples:

Racial preferences. O'Connor, joined by Stevens, Souter, and the Clinton appointees, wrote the 5-4 decision in Grutter v. Bollinger issued on June 23, upholding the University of Michigan Law School's racial preferences that would admit, for example, a Hispanic or black applicant with a B average ahead of a less affluent, but otherwise indistinguishable, Asian or white student with an A average. This was what the justices had been urged to do by the academic, journalistic, and corporate establishments, and by many retired military leaders, in an unprecedented outpouring of amicus briefs, scholarly articles, and op-eds arguing that racial diversity was so important as to justify preferences. But leading news organizations' portrayal of this elite consensus as reflecting a popular consensus was a gross distortion. "Court Mirrors Public Opinion," announced an especially preposterous front-page headline in The Washington Post; it was refuted by polls cited in the article itself. Indeed, every fairly worded poll ever taken on racial preferences has shown that overwhelming majorities of Americans—including, in many polls, African-Americans—disapprove. Unless ordinary citizens don't count, the Court is well to the left of center on this issue.

Gay rights. Kennedy wrote the sweeping, 6-3 decision striking down all laws against sodomy in Lawrence v. Texas, issued on June 26. Stevens, Souter, Ginsburg, and Breyer joined him, and O'Connor wrote in a narrower concurrence that laws against homosexual sodomy discriminated against gays. While this was consistent with public opinion, which now opposes such laws by a 2-1 ratio, the Court appears to be a bit left of center on gay rights, too. This is evidenced by its 1996 decision in Romer v. Evans, striking down a referendum in which Colorado's voters had barred the state and its localities from including gays as a protected group in their anti-discrimination laws.

Abortion rights. Stevens, Souter, O'Connor, and (with some reservations) Kennedy have joined Ginsburg and Breyer in upholding protections for abortion rights more sweeping than those in any European nation. These protections are also broader than most Americans would like. For example, an ABC News/Washington Post poll in January found that 57 percent of respondents wanted abortion to be illegal "when the woman is not married and does not want the baby" and 69 percent would ban "late-term procedures known as dilation and extraction, or partial-birth abortions." The Court has made abortion legal no matter what the woman's reason, and three years ago (with Kennedy dissenting) it struck down laws against "partial-birth" abortion.

Religion. Stevens, Souter, O'Connor, and Kennedy have joined decisions banning organized school prayer not only in public school classrooms, where the Court has prohibited the practice since 1962 because of the inherently coercive atmosphere, but also at ceremonial occasions such as high school graduations and football games. Polls show that Americans support prayer in public schools by ratios of more than 2-to-1.

O'Connor and Kennedy have also, of course, voted with the Court's conservatives on some very big issues. These include Bush v. Gore, which put George W. Bush in the White House, and many decisions involving crime, the death penalty, and states' rights. But these votes do not appear to have been markedly more conservative than public opinion.

Why have so many Republican appointees turned out to be more liberal than the presidents who picked them? One reason is the difficulty of getting known conservatives through the Senate. President Reagan chose Kennedy, then a fairly moderate appellate judge, only after the Senate had rejected the far more conservative Robert H. Bork by 58-42. The first President Bush chose Souter, the so-called stealth nominee, because his ideological leanings were such a mystery that there was little for Democrats to attack.

Stevens and O'Connor, on the other hand, both appear to have "evolved," to borrow the approving term of liberal law professors and journalists for the migration of the late Justice Harry A. Blackmun from right to left on the ideological spectrum. Seen as a solid conservative for a couple of years after his 1970 appointment by President Nixon, Blackmun had become the Court's most liberal member by the time of his retirement in 1994. (The late Justices William J. Brennan Jr. and Thurgood Marshall, who were even more liberal, had retired in 1990 and 1991, respectively.)

Stevens has undergone a similar evolution. He appeared to be a centrist, with a strong maverick streak, during the first few years after his 1975 appointment by President Ford, siding with conservatives on racial preferences in admissions and federal contracting, for example. His 1980 dissent in Fullilove v. Klutznick argued that "[p]references based on characteristics acquired at birth foster intolerance and antagonism against the entire membership of the favored classes," and added—in an especially biting footnote—that any "serious effort to define racial classes by criteria that can be administered objectively" must look to precedents such as Nazi Germany's detailed definition of "a Jew." Since the mid-1980s, however, Stevens has been a consistent supporter of racial preferences in employment, and now in admissions.

O'Connor has evolved more subtly, from a moderately conservative voting pattern after Reagan named her in 1981, to a moderately liberal pattern now, at the same time maintaining, for the past 15 years, her pivotal role as the justice whose votes control the outcomes of most 5-4 decisions. While her first few abortion opinions fed speculation that she might overrule Roe v. Wade, she has sided with the Court's liberals on abortion rights since 1992. And while she had previously been tough on racial preferences—warning in a 1989 plurality opinion that they may "promote notions of racial inferiority and lead to a politics of racial hostility"—her opinion in Grutter opens the door wide, at least in admissions.

These justices' ideological migrations correspond to some extent with trends in public opinion, such as increasing tolerance for gay people. But the public has not become perceptibly more liberal in recent years on abortion rights, racial preferences, or school prayer. This adds some plausibility to the claims of conservatives, including Justices Clarence Thomas and Antonin Scalia, that their more liberal colleagues have reshaped their own views to follow elite opinion, even when it diverges from public opinion.

That would be only human. The justices' closest professional collaborators are their extremely bright young law clerks, fresh out of elite law schools where liberalism reigns supreme and the views of ordinary Americans are widely scorned. And their reputations are shaped by predominantly liberal news media, law professors, lawyers' groups such as the American Bar Association, women's groups (which often honor first-woman-Justice O'Connor), and other civil-rights groups. New justices soon learn that siding with the conservatives gets them caricatured as intolerant, right-wing zealots, and siding with liberals wins them praise for "evolving" toward enlightenment. ("I ain't evolving," the defiantly conservative Thomas has been quoted as telling clerks.)

Is this a good thing or a bad thing? To bitterly disappointed conservatives, it is an engine for undermining democratic governance by writing liberal political views into the Constitution. To The New York Times, it reflects "the best instincts of the American people." To me—as one who joins liberals in despising discrimination against gays, and conservatives in despising discrimination against whites and Asians—it's better to have justices taking their cues from the Establishment than from, say, the Rev. Jerry Falwell or the Rev. Al Sharpton.

But it would be nice if they were a bit less confident that they know better than anyone else how to run the country. "It would be most irksome," as Judge Learned Hand wrote in 1958, "to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."