Michael C. Dorf

Becoming Justice Stevens: How and Why Some Justices Evolve

By MICHAEL C. DORF
Wednesday, April 21, 2010

In 1970, House of Representatives Minority Leader Gerald Ford initiated impeachment proceedings against Supreme Court Justice William O. Douglas. Although Ford legitimately objected to some questionable extra-judicial practices by Douglas, the hearing he convened also focused on the latter's jurisprudence. With no smoking gun of unethical behavior to which Ford could point, the impeachment proceedings were generally perceived as a threat to judicial independence, and Douglas served out his term.

Five years later, Ford was President when Douglas announced his retirement from the Court. A lesser man might have viewed the opportunity to name Douglas's successor as a chance to exact revenge by picking an anti-Douglas. Yet Ford understood that his own credibility was at issue. As the only person ever to become President without having been elected either to that office or to the Vice Presidency, Ford wanted to show that he valued the nation's constitutionally-ordained institutions. Ford also wanted to demonstrate that despite his effort to have Douglas impeached, he valued the independence of the judiciary. He thus sought a nominee who would be universally acclaimed for his intellect and integrity. President Ford found that person in John Paul Stevens.

Yet if Stevens was not the anti-Douglas, neither did he share all of Douglas's liberal views of the Constitution. Indeed, his early years were marked by conservative votes on two of the most sensitive issues to come before the Court–the death penalty and affirmative action. The evolution of Justice Stevens from a moderate conservative into the leader of the Court's liberal bloc is an object lesson in the law and politics of Supreme Court nominations.

The Death Penalty: Justice Stevens's Recent Change of View

Justice Stevens joined fellow centrists (and fellow Republican appointees) Potter Stewart and Lewis Powell in upholding the death penalty in the 1976 case of Gregg v. Georgia. In 1972, in Furman v. Georgia, the Court had struck down existing state death penalty statutes as vesting too much discretion in sentencing juries. Many observers at the time thought that Furman signaled the end of capital punishment in the United States. But when states reacted to Furman by enacting new death penalty laws that included factors to guide sentencing discretion, the Court deferred to the states, and allowed the death penalty to stand. Although Justice Stewart had indicated in Furman that if forced to face the question squarely, he might agree with the view that the death penalty is always unconstitutional cruel and unusual punishment, in Gregg he stepped back and deferred to the public's endorsement of the death penalty. In an unusual joint opinion, Stevens stepped back with him.

For most of his Supreme Court career, Justice Stevens adhered to the course that he had charted for himself in Gregg. He voted to strike down the death penalty when its application appeared arbitrary or otherwise unfair. But he did not adopt the position that Justices William Brennan and Thurgood Marshall had taken in Furman (and to which they adhered throughout their careers): Brennan and Marshall thought that the death penalty was always cruel and unusual punishment. In contrast, Stevens accepted that there were cases in which it could be applied constitutionally.

Or so it appeared until 2008. Then, in Baze v. Rees, Justice Stevens announced that his three decades of trying to apply Furman and Gregg had led him to conclude that the death penalty was indeed unconstitutional in all circumstances. (He did not vote on that basis, however, because he thought that Gregg was still controlling precedent, and should be so treated until a majority of the Court overruled it.)

In moving to an abolitionist view at the end of his judicial career, Justice Stevens followed in the footsteps of Justices Powell and Harry Blackmun. After his retirement, Powell told University of Virginia Law Professor John Jeffries (a former Powell clerk and his biographer) that he favored abolition. In Blackmun's last year on the Court, he too adopted an abolitionist position, famously stating in Callins v. Collins that he would "no longer . . . tinker with the machinery of death."

Affirmative Action: Another Area in Which Justice Stevens's View Changed Over Time

In 1978, Stevens staked out a relatively conservative position on race-based affirmative action. That year, in University of California Regents v. Bakke, the Court invalidated a state medical school admissions program that set aside seats for minority applicants. However, Justice Powell's controlling opinion indicated that while such a "quota" was unconstitutional, "plus factors" for race were permissible as one means of increasing diversity in university admissions. The Powell opinion has served as a template for affirmative action ever since.

Where was Justice Stevens in Bakke? He wrote for himself and the three most conservative Justices on the Court that a federal statute, Title VI, forbade any consideration of race in university admissions. Had the Stevens view prevailed in Bakke, that would likely have been the end of race-based affirmative action in higher education. Yet a quarter-century later, Stevens joined Justice Sandra Day O'Connor's opinion preserving affirmative action in Grutter v. Bollinger.  He–and the Court–had accepted the Powell position.

The Generally Liberal Evolution of Supreme Court Justices

It has sometimes been said of Justice Stevens, Justice Blackmun, and other Republican appointees who appeared to become more liberal over time that, in fact, they were merely standing still while the Court became more conservative around them. There is some truth to that view.

Stevens, Blackmun, Powell, and others were part of what used to be described as the "Rockefeller wing" of the Republican Party (so-named for Nelson Rockefeller, the one-time New York Governor and Ford's Vice President). A relic of the Republican Party of Abraham Lincoln, such Republicans were socially liberal and fiscally conservative but with a sense of noblesse oblige. One still finds some such Republicans in state government in the Northeast. (Think of Mitt Romney before he re-made himself as a conservative Presidential candidate or, better yet, former Rhode Island Senator Lincoln Chafee.) But Rockefeller Republicans are a dying breed. Notably, the Rockefeller currently serving in the U.S. Senate is Jay Rockefeller of West Virginia, a Democrat. Given the conservative nature of the modern Republican Party, recent Republican Presidents have increasingly seen Supreme Court appointments as an occasion to choose more dedicated conservatives. As they have done so, they have moved the Court to the right.

Thus, the Court-moved-around-them story does account for some of the drift one sees among Republican appointees who ended up "disappointing" their sponsors: Justices like Stevens, Blackmun, Powell, and O'Connor, as well as David Souter and, to some extent, Anthony Kennedy. As I observed in a 2007 article in the Harvard Law & Policy Review, moreover, these more-liberal-than-expected Justices probably were already more liberal than the public assumed when they were appointed; when Republican Presidents have wanted to name reliable conservatives, they have been able to do so, and as a recent New York Times article explains, they have gotten better at it in recent years.

Yet there is no denying that some Justices also drift toward more liberal stances over time. Linda Greenhouse's biography of Blackmun was aptly titled Becoming Justice Blackmun. The "Minnesota Twin" of Warren Burger took time to become the man who would forever be known simply as "the author of Roe v. Wade." And indeed, a chart accompanying the print edition of the Times article shows that Blackmun moved dramatically to the left over his career, as did Justices Stevens and Souter. Other Justices showed more moderate leftward drift; the graph shows that of eleven justices, only Justices Antonin Scalia and Clarence Thomas showed net rightward movement.

Do Changing Social Attitudes Cause Justices' Leftward Drift?

Why do Supreme Court Justices often become more liberal over time? Any answer is necessarily speculative, but we can nonetheless consider some possibilities.

Despite working in a marble temple, Justices are not isolated from the society in which they live. Thus, as the broader attitudes of society change, so too do those of the Justices. Language reflects a relatively minor–but still instructive–instance of this phenomenon: Supreme Court opinions in the 1960s and 1970s talk of "Negroes," those from the 1980s refer to "blacks," and more recent opinions refer to "African-Americans." To give a more substantive example, in 1986 Justice O'Connor joined Justice Byron White's opinion in Bowers v. Hardwick, which rejected a claimed constitutional right to same-sex sodomy as "at best facetious." In 2003, she voted with the majority in Lawrence v. Texas to strike down a state law forbidding same-sex sodomy. Although O'Connor argued that the results were consistent–because Hardwick involved due process, and her vote in Lawrence was rooted in equal protection–the better explanation is that Justice O'Connor's views about homosexuality, like society's as a whole, had changed significantly in the intervening 17 years.

More broadly, to the extent that human history, or at least American history, is a story of progress, Justices will generally expand rights as time goes by–that is, they will appear to become more liberal. Yet this phenomenon only explains part of the drift.

To begin, Supreme Court Justices cannot be uniformly expected to change their attitudes with the population as a whole. Much attitudinal change in society occurs without many individuals changing their own attitudes. Social scientists call this "generational" change: Old people die and are replaced by young people with different attitudes. Because Supreme Court Justices are typically appointed in middle age and serve into old age, we can expect their attitudes to lag behind those of the society as a whole.

Moreover, American history is not a perennial march of expanding rights. It is more of a muddle. In the last three decades, social values have changed in different ways along different dimensions. Overt discrimination against African-Americans, women, and sexual minorities has become less prevalent, even as other forms of inequality have increased: For example, wealth concentration has increased in the same period. Thus, even if Supreme Court Justices were a perfect reflection of changes in social attitudes, we would not necessarily expect those attitudes to move in a uniformly liberal direction.

Does American Law Have a Liberal Bias?

One factor that undoubtedly plays a role in judicial drift over time is experience. Justices Powell, Blackmun, and Stevens each pointed to the years of death penalty cases in which they participated as crucial factors in their loss of faith in the system of capital punishment. Exposed in detail, and repeatedly, to a broken system, they eventually questioned the premises on which their earlier votes had been based.

That experience may explain drift on the death penalty but it is not a general explanation for leftward drift. One could, after all, describe a Justice who became more conservative on some issue as responding to negative experience with some liberal doctrine–affirmative action, say. Judicial experience no doubt shapes the views of long-serving judges, but not necessarily in a liberal direction.

In the end, I would offer the following provocative suggestion: More often than not, Justices drift left because American constitutional law itself has a "liberal bias." The judicial process calls for the evenhanded application of principles. Yet as Justice Benjamin Nathan Cardozo wrote (when he was a judge on New York's highest court) in his book The Nature of the Judicial Process, a legal principle has a "tendency . . . to expand itself to the limit of its logic." A Supreme Court Justice who wants to deny the expansion of rights under open-ended constitutional provisions such as the First, Fifth, and Fourteenth Amendments will find himself or herself struggling against the natural pull of the job.

To be sure, there are materials available for a Justice who does want to engage in that struggle, and sees himself or herself as holding the line against rights-expansion. Cardozo himself recognized that the tendency of a legal principle to expand can be "counteracted by the tendency to confine itself within the limits of its history." To use more contemporary language, judges who seek narrower interpretations of legal principles may come to see the relevant texts as not expressing principles at all, but only as expressing narrow historical compromises. This view goes under the name of "textualism" in statutory interpretation, and "originalism" in constitutional law (although recent years have witnessed a proliferation of views that claim to be "originalist").

Accordingly, self-styled textualists and originalists (like Justices Scalia and Thomas) can resist the progressive pull of principle that Cardozo identified, but only at the cost of endorsing a view that seems ill-fitted to the materials at hand: The most hotly- contested provisions of the Bill of Rights and the Fourteenth Amendment certainly look more like they are speaking the language of broad legal principle than that of narrow historical compromise.

Does the resulting "liberal bias" of American law ensure that all or even most Justices will drift leftward over their careers? Of course not. My hypothesis remains unproved and even if true, it will only count as one factor in explaining the behavior of any Justice over the course of her career. Moreover, a determined conservative President can find Justices who will withstand the pull of liberal principle.

Nonetheless, and even with all of the foregoing caveats, liberals have grounds for cautious optimism (and conservatives have grounds for moderate pessimism) that a reasonably open-minded Justice who accepts the duty to apply legal principles will end up more liberal than he or she started. Just don't expect President Obama's next nominee to admit that.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. The second edition of his book, Constitutional Law Stories, is now available. He blogs at dorfonlaw.org.

Ads by FindLaw