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Can We Tell In Advance What Kind of Supreme Court Justices Nominees Will Make?
Justice Blackmun's Example Suggests that Our Guesses May Well Be Very Wrong


Thursday, Sep. 29, 2005

Now that Judge John Roberts is about to become the next Chief Justice, pundits have been scratching their heads about what kind of Chief he will be, over the long term. Will he prove to be a Rehnquist clone who cleaves to a hard-line conservatism? Or will he be a justice who "evolves" to the left over time?

Those seeking to make this calculation have been scouring the traditional sources. They have looked at the copious memos Roberts wrote while in government service (at least, those released to the public). They have dissected his client list from private practice, and the relatively few judicial opinions he wrote on the D.C. Circuit. They have studied the interviews with Roberts's friends and colleagues. And they have pored over his confirmation hearing testimony.

Sensible as this approach may be, I have doubts whether, in the end, any of these source materials are particularly useful indicators; at a minimum, it seems likely that they are not as useful as we might wish them to be. Truth be told, there are few reliable guides to the eventual views of Supreme Court nominees, and some of those that do exist are not generally subjects of inquiry.

Take Justice Harry Blackmun, who is often considered the archetype for a justice who "evolved" while once appointed to the high court. With the release of his personal papers we are learning more and more about his "evolution" from conservative law and order Nixon appointee into outspoken liberal. As it turns out, the reasons for Blackmun's development would have been hard to detect at the time of his nomination. Looking at Blackmun's papers provides a cautionary tale about guessing what a Justice's evolution will be like, as his or her career progresses.

Why Blackmun Evolved on the Court: New Influences on His Thinking Arose

To begin with, many important influences on Blackmun's thinking did not occur until Blackmun was already on the Court.

For example, there can be little doubt that Blackmun's ideological shift resulted in part from the fortuity that Chief Justice Warren Burger assigned Blackmun the task of writing the Court's opinion in Roe v. Wade. As Linda Greenhouse develops in her recent book Becoming Justice Blackmun, the justice's determined defense of Roe against incessant -- and what he saw as highly personalized -- conservative attacks propelled him further and further into the liberal camp, including on issues far removed from Roe.

Other post-appointment factors were also at work.

As Professor Dennis Hutchinson of the University of Chicago Law School has written, starting in 1979, Blackmun began teaching a seminar on "Justice and Society" at the Aspen Institute every summer. These seminars, which he co-taught with the liberal criminologist Norville Morris, provided Blackmun with a liberal education in literature and philosophy. And, as Hutchinson argues persuasively, they caused Blackmun to move left, as he engaged in regular and serious reflection on the gap between "law" and "justice" in the American judicial system.

(Notably, Jeffrey Toobin has recently suggested in The New Yorker that Justice Anthony Kennedy's judicial views have been similarly influenced by his experience teaching law in various international settings during the Court's summer recess).

Once on the Court, Blackmun was also influenced by the cases themselves. An important part of Blackmun's shift from finding no constitutional objection to the death penalty in 1972, to finding the death penalty wholly unconstitutional in 1995, was his exposure to literally hundreds of death penalty cases in the intervening 23 years.

As Blackmun realized in reading case file after case file, even if the death penalty was constitutional in the abstract, it was simply not within human capacity to devise a sufficiently fair and rational system to comply with the Constitution's demands of equal and non-arbitrary justice.

There Were Clues That Blackmun Would Evolve, But Mostly Psychological Ones

Of course, the impact of these events on Blackmun depended on aspects of his character, background, and beliefs that he brought with him to the Court. But confirmation hearings are a poor vehicle for exploring the deep tissue of a person's fundamental make-up; nor, in many cases, does studying a nominee's past writings or professional experience shed much light on how a person will respond to new ideas and events.

Again, Blackmun is a case in point. Neither his opinions as an appellate judge, nor his experience in private practice or as General Counsel to the Mayo Clinic, gave more than a hint of what kind of justice Blackmun would become.

The real clues to Blackmun's transformation, to the extent they can be discerned, lay buried in childhood experience, family history, and the non-legal belief systems that influenced his legal thinking.

It is impossible to understand Blackmun's response to the controversy surrounding Roe without appreciating his personal insecurities, born of a family history tinged with tragedy and disappointment. As Greenhouse explains in her book, this insecurity led Blackmun to chafe under even modest criticisms of Roe and inevitably drove him into the camp of Roe enthusiasts, especially that of the liberal icon Justice William Brennan.

Similarly, it is impossible to understand Blackmun's views about race discrimination and states' rights without appreciating his hero worship of Abraham Lincoln, and his devotion to the concepts of emancipation and national "Union" - the twin causes for which both of his grandfathers had fought in the Civil War. Blackmun was a Lincoln Republican bred in his bones - and that placed him on the liberal side of many civil rights and states' rights issues.

Blackmun was also a religious man who took religion (his own and others) very seriously. And one can trace his views favoring a strong separation between Church and State to precisely the fact that he saw government entanglement with religion to have the inevitable effect of secularizing (and thus demeaning) religious conviction.

What We Do Know About Judge Roberts, Thus Far

This is not to say that a nominee's record and hearing testimony are unimportant, or that, on this basis, nothing meaningful can be said about Judge Roberts's likely views as a justice.

From the materials we do have, we know that Roberts started his career as a true believer in the Reagan Revolution -- which aimed, in the judicial sphere, at reversing many of the innovations of the Warren era.

We know that he has spent his career as a prominent and highly talented member of the conservative legal community, and served as the "political deputy" in the Solicitor General's Office of the elder Bush's Administration.

We know that Roberts has written several quite conservative opinions as a D.C. Circuit judge.

We know that, at his confirmation hearings, Roberts repudiated the jurisprudence of Justices Antonin Scalia and Clarence Thomas, and declared himself to be a legal pragmatist.

And we know that Roberts is a man of deep religious conviction.

But all that said, we have no idea whether these data points are determinative of anything more than a very high probability that, in the short run, Roberts is going to be less conservative than Scalia and Thomas, and more conservative than Kennedy.

Along these lines, it is common wisdom to say that Roberts will be a Rehnquist clone - a very conservative justice, but not one who subscribes to the jurisprudence of original intent. But even this strikes me as overstatement.

Roberts's personal background and Rehnquist's are quite different. So are the political fights that raged as each came of age. (Thinking Brown v. Board of Education to be wrong, as Rehnquist did, is not the same as opposing affirmative action, as Roberts has). And these differences, it seems to me, make a meaningful extrapolation of one to the other fairly problematic.

There are some people - like Scalia -- whose belief systems are so well-entrenched and openly declared that they are unlikely to surprise us, as their tenure on the Court lengthens.

But for others, ascendancy to the Court is a life-transforming experience -- one that begins a process by which new ideas and experiences mesh with an individual's psychology, in ways that defy most meaningful prognostication. How this alchemy will work in Roberts's case, only time will tell.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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