Welcome to Lee Epstein and a few thoughts about ideological drift

JB

I note with some amusement that Lee's first post here was immediately followed by a post by Brian Tamanaha critiquing the very field she works in. All I can say is, Lee, welcome to the blogosphere!

Another thing that I found fascinating was Lee's invocation of the term "ideological drift," which has acquired a somewhat different use in law. I coined the term back in 1990 to describe the changing political valence of certain ideas and policies as they are repeatedly introduced into new contexts. Lee uses the term in an importantly different way-- to describe how particular Justices move from the left to the right or the right to the left during their years on the Supreme Court. (It's important to recognize that, contrary to the received wisdom, lots of Justices have moved from left to right. Examples might include Byron White, Hugo Black and Felix Frankfurter. If more Justices have moved from right to left in the past generation, that is in large part because Republicans have made almost all of the judicial appointments to the Court since 1967.)

I wonder whether there may not be some important connections between the two different uses of "ideological drift." Perhaps one reason why Justices appear to drift leftward or rightward is not solely due to changing political beliefs but because of the changed context in which they make their decisions. For example, Justice Stevens claims that he is still very much a conservative, just as he was when we was appointed by Gerald Ford. We must take that claim with a grain of salt. On the other hand, from the standpoint of 1976, a middle of the road Republican might have views judged fairly left of center. Certainly the Rockefeller wing of the party would be judged quite liberal by today's standards.

Moreover, the issues that divided liberals and conservatives in 1976 are not always the same issues as the ones that divide them today, and judges and Justices are often appointed with respect to the salient issues of their time, when the most important issues today were not yet on the radar screen.

Abortion is a good example. It is no accident, I think, that the original decision in Roe v. Wade featured as many Republican appointed Justices (Burger, Blackmun, Stewart, Powell) as Democratic appointed Justices (Douglas, Marshall and Brennan, a Republican appointee whom I will count as a Democratic Justice); and that the dissenters (White and Rehnquist) were appointed by a Democrat and a Republican respectively. That is because in 1973 abortion did not yet divide the two parties. When Stevens was appointed, many more Republicans were pro-choice than they are today. A relatively libertarian Republican on social issues (of whom there were many in 1976) would look increasingly liberal as the Republican Party reorganized itself in the wake of Reagan's election in 1980.

Obviously not every drift in the views of the Justices can be explained by changes in political contexts-- what I call ideological drift. But I suspect that a great deal can be so explained, and it would be worth studying carefully particular examples of Justices who were said to drift to see when this might be the case.