Absolute Ideology and Relative Center Position: Judicial Philosophy v. Political Control in the Supreme Court

November 20, 2007

Many aspects of the Supreme Court of the United States draw attention for their significance in shaping the political and judicial order of the country. One of the most intriguing, and perhaps the most important, issues about the high Court is the Justices’ judicial philosophy and the reasons why they cast their votes.

A Supreme Court decision is the product of nine interdependent votes, and each Justice, in order to establish the law she most prefers, adapts herself to the choices of the others.[1] Interaction among the Justices, thus, is expected; there is no sense in predicting a Justices’ behavior without taking into account the reaction of the other Justices to her opinions. Policy preferences affect the voting behavior, and so does the institutional context of the court. I will canvass two major explanations for voting behavior concerning legal philosophy: Justices’ absolute position in the ideological spectrum, and their relative one.

Usually, Justices have a clear-cut ideology; their views are often shared by the president that appointed them. Due to a Justice’s vast experience before entering the Court, it is easy to track down her decisions or votes in the past, thereby predicting her opinion in specific issues. Sometimes, however, the complexity of a Justices’ legal philosophy may render difficult to label her simply a “liberal” or a “conservative”. Let’s take the example of Justice Byron White (1962-1993), who voted with the right wing in the majority of cases, but had liberal views on granting certiorari and in equal employment opportunity cases. Some other times, the expectations on the behavior of a Justice may be flawed and even mistaken; the appointment of Earl Warren is a clear example. He was nominated Chief Justice by President Dwight Eisenhower, who wanted a conservative judge that shared his economic and political views. However, the “Warren Court” marked a liberal period with the decisions of Brown v. Board of Education, Miranda v. Arizona, and several others that consolidated civil rights. It is not easy, then, to predict how Justices will act, and conclusive results can only be reached if the whole structure of the Court is analyzed.

Although some of the aspects in a Justices’ behavior are complex and not always logical, to a great extent Justices carry on certain values and represent a pre-shaped ideology. We can easily identify the absolute ideological position of a Justice when she aligns almost all the time with one of the ideological sides (either left or right). To better understand this point of view I shall use Justices Antonin Scalia and William Brennan, during the Rehnquist Court, as examples. Brennan’s liberal opinions and judicial activism were often put aside by his colleagues, a majority of whom voted conservatively. He had had great ability to “pull five votes out of a hat,”[2] but the Reagan conservative appointees shifted the views of the Court, making it more difficult for him to win a majority in a case. Scalia, on the other hand, was recognized as the most conservative member of the Court as soon as he stepped into office. A fierce supporter of originalism in constitutional interpretation, he was objective and decisive in his opinions. But his radicalism rendered him little ability to influence the other Justices; he had strong views in polemic issues, and by not being flexible about them he wasn’t a major player in the Court. Rather, he was a certain vote for the right wing.

There are Justices who, in an absolute scale, can be considered either conservative or liberal, but when the context of the nine Justices is analyzed, stand on the ideological center of the Court. This is the case of Anthony Kennedy and, most notably, Sandra Day O’Connor. O’Connor had been a majority Republican leader in the Arizona State Senate, and worked as a Court of Appeals judge before she was nominated to the High Court. Her experience, then, was more political than judicial, as her Supreme Court jurisprudence would evidence. She approached each case narrowly, and even though she was initially close to conservatives like Rehnquist and Burger, her actions were characterized by her being the central player in the Court. In a Washington Post article called Philosophy for a Judge,[3] right-wing journalist Charles Krauthammer said O’Connor lacked a judicial philosophy, due to her case-by-case approach. Her unpredictability, nevertheless, was not capricious. She used her political experience to avoid being tagged along with one of the ideological sides of the Court – as were Scalia and Brennan – and thereby be the swing vote in many important cases.

Each of these two explanations of the voting reasons – absolute and relative positions in the Court – leads to an expectation of the Justices’ behavior. By setting reasoning standards and deciding in a principled way, Justices can solidify their political positions. Justices who have a clear ideological position in the Court may give up their preferred standard and adopt a midlevel approach to a certain case, so that an undesirable standard isn’t applied – such was the case in Brennan’s opinion in Craig v. Boren.[4] The strategic actions of the Justices aim at seeing the law reflect, as closely as possible, their preferred positions[5]. They do so by bargaining or “accommodating” (as the Justices euphemistically refer to this convincing process), usually by exchanging internal memos or adapting their opinions so that others will join. It is a political process by which Justices gather votes using their rhetoric and their writing abilities. The possible expectation stemming from this behavior, then, is that Justices will endeavor to persuade their colleagues to vote with them, being flexible in the standards they set but always trying to steer the outcome of cases. Joan Biskupic’s book on Justice Sandra Day O’Connor is replete with examples where Justices like Lewis Powell or Warren Burger adopted this strategy.

The central relative ideological position – or, in Krauthammer’s words, the lack of a strong judicial philosophy – leads to a completely different situation. Justices with clear-cut ideologies are less likely to predict how the “case-by-case” Justice will act, so it is difficult for them to shape a decision with the intent of getting that particular vote. Instead, it is the centralized Justice who has the power to analyze the situation and vote according to her preferred views. It is predictable, then, that a Justice in this position would take advantage of it in order to become the most influential in the Court. In O’Connor’s case, the Court was usually a 4-4 split (notably with Rehnquist, White, Scalia and Kennedy on the right wing; and Brennan, Stevens, Marshall and Blackmun on the more liberal side), and she skillfully benefited from the situation to turn into a pivotal player – perhaps the most important one – able to exercise some discretion and cast the decisive vote in many occasions.

Bargaining and forward thinking by a skilful Justice may switch a vote or two sometimes, but it is not always effective. Justices Scalia and Brennan, for example, have little in common in their views, so they scarcely were in the same side in an opinion. O’Connor, however, swung from the conservative to the liberal side; she could use her moderate position to take a great deal of control over the other Justices.

The Supreme Court, once named the “least dangerous branch” of government by Alexander Hamilton (Federalist Papers #78), is now a highly politicized organ. It has been long proven that judicial qualifications alone don’t engender a good court functioning; the institutional context of the Court requires a political approach – one that Sandra O’Connor mastered – to the decision making process. On the other side, the strategic actions of Justices such as William Brennan, when successful in marshalling a majority, set a strong and fixed judicial path built upon a Justice’s philosophy.

In her last term in the Court, O’Connor said: “Being a member of the Court is a little like walking through a fresh concrete. We look back and see those opinions that we’ve written and they sort of harden after us.”[6] The legacy Brennan and Scalia are going to leave is much solider and richer in terms of interpreting the Constitution; O’Connor’s legacy relates to social science studies and is evidence that by being an independent voter that rarely took definitive sides she could inch her way from being the first woman on the Supreme Court to a position where she could guide the outcome of the most important cases.

Bibliography

–          BISKUPIC, Joan. Sandra Day O’Connor. New York: HarperCollins Publishers, 2005.

–          EPSTEIN, Lee and Jack Knight. The Choices Justices Make. Washington, DC: CQ Press, 1998

–          KRAUTHAMMER, Charles. Philosophy for a Judge. The Washington Post, Friday, July 8, 2005; http://www.washingtonpost.com/wp-dyn/content/article/2005/07/07/AR2005070701898.html. (Accessed November 19, 2007).

–          BAUM, Lawrence. American Courts. Boston: Houghton Mifflin, 2001.