The Souter Factor: What makes tough conservative justices go soft?

http://www.slate.com/id/2123935/

The Souter Factor
What makes tough conservative justices go soft?
By Dahlia Lithwick

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Half-baked theories about the drift to the left abound. Here they are, for Roberts' watchers to consider:

1. The Greenhouse Effect "The Greenhouse Effect" is the name of a phenomenon popularized by D.C. Appeals Court Judge Laurence Silberman referring to federal judges whose rulings are guided solely by their need for adulation from legal reporters such as Linda Greenhouse of the New York Times. The idea is that once confirmed, justices become desperate to be invited to the right cocktail parties and conform their views to those of the liberal intelligentsia. Robert Bork recently told the New York Times, "It's hard to pick the right people in the sense of those who won't change, because there aren't that many of them. … So you tend to get people who are wishy-washy, or who are unknown, and those people tend to drift to the left in response to elite opinion." Similarly, Max Boot argues that Anthony Kennedy "is no Warren or Brennan, to be sure, but whenever he has a chance to show the cognoscenti that he's a sensitive guy—not like that meany Scalia—Justice Kennedy will grab at it."

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3. "Seeing the Light" This theory, a favorite of liberals, hinges on the claim that jurists eventually drift leftward because they become increasingly compassionate/sensitive/wise with age, and that each of these values is a fundamentally liberal one. In last week's Chicago Tribune, Geoffrey R. Stone, a professor of law at the University of Chicago, editorialized that "ustices are continually exposed to the injustices that exist in American society and to the effects of those injustices on real people. As they come more fully to understand these realities, and as they come to an ever-deeper appreciation of the unique role of the Supreme Court in our constitutional system, they become better, more compassionate justices."

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4. The Boys in the Bubble This is the theory used to explain David Souter's dramatic defection from solid conservative preconfirmation to reliable liberal justice. The argument is that he had so little "real-life" experience prior to his confirmation that he only developed his jurisprudential views after donning the black robe. Souter himself has said that when he was confirmed he knew next to nothing about important federal constitutional issues—having had experience as a state attorney general and then as a state supreme court justice. At his confirmation hearings he answered truthfully but saw his views change radically once he began to truly study the issues. Because judges often hail from Ivy League institutions or from the lower courts, they may be less likely to have fully formed political ideologies. Certainly there is some truth to the proposition that justices who either rose through the executive branch (like a Clarence Thomas) or had tremendous advocacy experience (like a Ruth Bader Ginsburg) are less likely to change their views once confirmed.

The Constitution and America itself are fundamentally about rights. The Constitution limits the rights of government while ensuring the rights of freedom. Justices of either political extreme come to the court expecting to make their mark by supporting their ideology, but once on the Court, they become even more aware of their unique position in the world. The decent people, of both parties, realize that the Court is not a place to preach one's ideology. They thus become more serious about the law, and about the Constitution, and as each case comes before them, they find that the arguments with the most legal support, both in precedence and in the Constitution itself, are the ones that side with personal freedom and public restrictions of government's power in reducing those freedoms. It isn't that they become liberal, they just become more attuned to the Constitution, and this comes across--usually--as liberal.

Arrogant, narrow-visioned fools like Scalia, or dimwits like Thomas, however, just believe they are the law, and don't care about freedoms. Scalia is good at twisting logic halfway around to support his ideology, and his ideology is more important than the country to him. Thomas, obviously, is just an idiot and does what Scalia tells him.

This isn't new with this court. Earl Warren was appointed because of his conservative views. He wound up leading the surprise decision on Brown v Board of Education.

Sometimes the light dawns, sometimes the intellect is engaged, and sometimes, it's the warrant and the knock on the door....