There is a familiar motif among Court-watchers about
conservative Justices migrating left over the course of their time on the bench. This week, the website FiveThirtyEight.com
ran a story of this genre under the title Is
Chief Justice Roberts a Secret Liberal? It’s a bad story, and I’ve said so by
Tweetstorm. But I’ve also seen other
outlets pick up the FiveThirtyEight story and repeat the idea, so I figure it’s
worth laying out the reasons why it’s bad story clearly and in a forum that’s conducive
to a little bit of sustained argument.
The FiveThirtyEight story is an examination of what the
story takes to be a demonstrated fact: that Roberts has moved to the left. But the answer to the story’s titular
question is no. Roberts isn’t a liberal,
secret or otherwise. (Except in the
classical/market sense, and to the extent that Roberts is that kind of liberal, it’s never
been a secret.) But the topic may
require a longer discussion. Why do some
people think that Roberts is in fact a liberal (in the prevailing political
sense), having either secretly been so all along or having moved left since
become Chief Justice? Similarly, whence
the more general idea that conservative Justices regularly move left?
Where Roberts is concerned, a big part of the answer is of
course the salience of the Chief Justice’s votes in the two big ACA challenges,
NFIB v. Sebelius and King v. Burwell. Where the more general question is concerned,
a big part of the answer is more or less the same thing, generalized: the
experience of many conservatives over the past quarter-century of being
repeatedly frustrated at the Court’s unwillingness to do certain things that
those particular conservatives think the Court should do (like overrule Roe, or end affirmative action, and so
on), even though the Court has had a Republican-appointed majority for decades. In short, there’s a gap between where (many)
conservatives are on salient legal issues and where Roberts—or the center of
the Court—is. Roberts or the center of
the Court seem, in those salient ways, to be to the left of the relevant
conservatives. And one way to explain
that gap would be to say that Roberts, and other Justices who were appointed as
ostensible conservatives, moved to the left after being appointed.
That’s the answer that the FiveThirtyEight story takes as
factual. And it purports to do so not
just on the basis of anecdote or impression but on the basis of the thing that is
the stock-in-trade of FiveThirtyEight: data.
The story presents lots of data about decisions Roberts has made and the
voting coalitions he has joined—tables, graphs, and other such stuff—which it
says show that Roberts has in fact moved to the left. More generally, it says that similar data
show that several Republican appointees to the Supreme Court moved left over
the course of their careers.
But I don’t think Roberts has moved to the left. And the data presented do not prove that he
has.
The story’s analysis suffers from a huge and basic flaw. It’s
more or less the same flaw that Joseph
Fishkin and Cary Franklin went to town on when the New
York Times ran a cognate story two years ago about the ostensible
liberalism of the Court as a whole. It’s
regrettable that the point needs to be made again. But apparently it does. So here goes.
In brief: Maybe Roberts isn’t moving to the left. Maybe the questions the Court is being asked
are moving farther and farther to the right.
Consider an illustration. At Time 1, the Court hears a case in which the
question presented is “Does the Second Amendment confer an individual right to
own firearms?” Justice X votes yes. At Time 2, the Court hears a case in which
the question presented is “Does the Second Amendment confer an individual right
to carry automatic weapons near schools?”
Justice X votes no. Has Justice X
moved left between Time 1 and Time 2? There’s
no reason to think so. Justice X might hold
the ordinary and consistent position that the Second Amendment confers an
individual right and that the scope of that individual right does not include
the carrying of automatic weapons, or the carrying of weapons near schools, or
the combination of the two. But in the
data on which the FiveThirtyEight story relies, the first vote would be coded “conservative”
and the second vote “liberal.” Thus
“showing” that Justice X had moved to the left from Time 2 to Time 2. Even if he hasn’t.
There’s a similar problem with the portion of the data that
codes Justices as liberal or conservative based on the frequency with which
they vote with other Justices. Go back
to the two hypothetical firearms cases.
In the Time 1 case, Justice X would vote with the most conservative
Justices and against the most liberal ones.
In the Time 2 case, the situation would be reversed. But Justice X hasn’t moved at all. What’s changed is the question he is
answering, not his views on the subject matter.
So now we need to bring in a big fact that the
FiveThirtyEight story (and others like it) seem not to have on screen at
all. It’s this: The questions presented
in the cases that the Supreme Court decides move through ideological space over
time, tracking the ideological direction of the Court itself. As the median Justice moves right or left
(that’s oversimplified, but it’ll do for schematic purposes) on a particular
issue, questions that used to be contestable become settled, and other
questions that used to be settled become contestable, and litigators know it,
and cases are brought at the new frontier—cases that the Supreme Court would
never have bothered to hear before, if anyone had even tried to litigate them. In terms of the firearms example above: ten
years ago, it wasn’t yet settled that the Second Amendment conferred an
individual right at all. We were still
litigating that question. Only after
that Time 1 question is settled do the courts move on to confront questions
like the Time 2 question.
In recent decades, in most (but not all) issue spaces, the
questions in the Court’s cases have moved farther and farther to the
right. The Second Amendment context I’ve
been using is one example. See also affirmative
action, criminal procedure, federalism, campaign finance, and takings—and that’s
just in constitutional law. (A
significant exception, within constitutional law, is LGBT+ issues: more on that
later.) This general rightward movement is not mysterious. Except for the parts of the 2015 and 2016
terms when the Garland stonewall kept the Supreme Court at eight members, the
Court has had a GOP-appointed majority continuously since 1970. The law has
evolved as shaped by those majorities. And
as the law moves farther and farther to the right, the questions that the Court
considers also move farther and farther to the right. So Justices who are “to the right of where
the law is” at Time 1 might come to straddle more of the questions at Time 2.
Put more concretely: Sure, Chief Justice Roberts didn’t read
the ACA to require its own self-destruction in King v. Burwell. But the
legal theory he rejected was a highly aggressive theory. One can be conservative and still not think
THAT. Or, to use an imprecise but
serviceable analogy: Senator Jeffrey Flake isn’t a secret liberal just because
he’s against Roy Moore. The more Roy
Moores the GOP nominates, the more such people Flake will oppose (I hope). Flake still won’t be a liberal.
In sum: The data in the FiveThirtyEight story might show
that Roberts is not as far right as he once was relative to the questions he’s
being asked. But those questions are
moving right. Without reading the
underlying studies closely, I can’t be sure whether what I’ve said here explains
all of what’s being reported about those studies or just most of it. But when you read studies and stories like
these, keep this dynamic in mind.
In my conversations on this topic, one question I’ve been
asked is about Justice Alito. If what I’m
saying is right, the question goes, shouldn’t other conservative Justices also seem
to be moving left? Alito, appointed by
the same President as Roberts, doesn’t seem to be moving that way. It’s a good question, but the answer is
pretty simple. On a lot of issues, Alito
is farther right than Roberts, even though both Roberts and Alito are within
the ideological space that was attractive to the George W. Bush Administration
when it decided whom to appoint. A bunch
of of litigated issues have now reached the zone where Roberts might come down
on either side, and fewer have reached the analogous zone with Alito, because
the law has to go a little farther before it gets to him. But—the big and simple point—anyone can be the median Justice, or the
median voter in any constituency, regardless of the substance of that person’s
views. All that matters is who else is
in the group. If the next two Supreme
Court appointments replace Democratic appointees with people to Alito’s right,
then Alito will start to look like a liberal, too—at least to the people who
read data in the way the FiveThirtyEight story does. And though these data sets don’t show Alito
moving right, they do show apparent rightward movement for several other
Republican appointees in the last half-century.
John Paul Stevens began as a moderate conservative and left the Court at
its left-wing edge not because he radically changed his worldview but because
the world, and the institution, changed around him. (Which isn’t to say that in thirty-three
years he never rethought an idea.)
This same analysis explains why we should be skeptical that
Roberts’s appointment is a case of failed GOP vetting. Vetting failures occur when something about
the candidate would disqualify him if it were known to the people responsible
for selection at the time of the selection
decision. In 2005, when Roberts was
appointed, there was nothing wrong with him from the point of view of most
committed conservatives in the American legal elite. His commitments on the salient issues were
just right. (This is a statement made
roughly: I don’t mean to be saying that his precise views fit a particular
conservative template exactly, in part because there is no such precise template.) In 2005, that group of elite conservative
lawyers had no clue that seven years later they would be converging on a particular
set of legal arguments which, if accepted, would destroy a statute not yet
drafted by attacking particular features of that statute which were not yet
objects of conservative obloquoy. For
the most part, they developed those views (in good faith, I stipulate) after
Roberts was on the bench—and in significant part, Roberts developed right along
with them. He agreed with the commerce
argument in NFIB, after all. To be sure, he didn’t go all the way with the
ACA challengers, and that was a big deal.
But how he would come out on the ACA as a tax wasn’t a vettable question
in 2005. The vetters of 2005 couldn’t possibly have posed it: the relevant
features of the law are too complex and contingent to have been imagined in the
abstract. And even if the question could
have been posed in the abstract, the vetters would probably not have regarded
it as an important question for a nominee to answer, unless they knew that the
legal question they were asking would be presented in the context of the ACA
(or some similarly opprobrious statute).
In this context, what is called a failure of vetting is really a failure
to predict whether a nominee will change in the future, in a certain direction
and at a certain rate that matches the direction and rate of change of a
certain set of elite opinions in the party that nominated him. Ascribing the phenomenon to vetting misses
that fact and also lays blame where it doesn’t belong: it suggests that the
fault lies with some combination of the vetters’ incompetence and the nominee’s
sneakiness, rather than the nominee’s failure to change in the future in a way
that the vetters could not possibly completely specify. (If your spouse doesn’t
share a new passion that you develop after years of marriage, you’re on shaky
ground asserting that he or she isn’t the person you thought he or she was when
you got married.)
Finally, consider an area that I marked above as an
exception to the law’s general rightward trend: LGBT+ issues. The Court as a whole has moved dramatically
to the left in that space during the last thirty years. But the exception is itself instructive. Yes,
the Court moved left in this domain in absolute terms. But relative to mainstream opinion, it stayed
pretty much the same, which is to say that the Court’s movement largely mirrored
that of the country. Leftward movement on
this issue was possible in an era when the Supreme Court had Republican-appointed
majorities precisely because an important slice of Republican opinion was
moving left on the issue: Dick Cheney endorsed same-sex marriage six years
before Anthony Kennedy did. And as for
vetting? Kennedy wasn’t vetted for his
views on same-sex marriage in 1988, and if he had been, he’d have passed with
flying colors, because he had no idea that one day he’d have the view that he
turned out to have in 2015.
None of this is to say that Republican appointees never move
to the left. Over time, people sometimes
rethink things. Harry Blackmun moved
left on capital punishment, and Anthony Kennedy has plausibly (if not
uncontrovertibly) moved left on affirmative action. But the big mass of data that some take to
show several Republican appointees trending left over the course of a few
decades would be pretty well explained by noting that during those decades, the
contested space of the legal questions the Court confronts has, on most issues,
moved farther and farther to the right.
Which it has.
This observation might not ease the frustration of
conservatives who would like Roberts to be as conservative as they are, or to
develop farther toward the right as fast as they do. Nor will such conservatives necessarily be
comforted by the knowledge that liberals are no strangers to this kind of
frustration. A great many liberals find
the Democratic appointees on the Court maddeningly tepid in their liberalism. And if that problem stings liberals less than
the parallel problem stings conservatives, it might be only because the
liberals know they wouldn’t win cases even if the Justices they’re frustrated
with moved farther left: a majority requires persuading at least one Republican
appointee, and that’s been true since before Justice Gorsuch entered
kindergarten. Which is why the law has moved
steadily to the right. Which is why it
can look like Justice Roberts is moving left.
Which I think he isn’t doing.