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Supreme Court: Souter Out (Joe)

With the recent news that David Souter is retiring from the Supreme Court, President Obama will have his first opportunity to appoint a Supreme Court Justice. Putting aside speculation on what Obama might in fact do, I want to comment briefly on the type of ideological appointment he ought to make (this ignores other characteristics, such as gender, race, and legal background, all of which are important to varying degrees).

There are basically two major options: One, appoint a strong liberal. Two, appoint, a wishy-washy liberal. At least in the short run, I think the latter is actually the better option.

Justice Kennedy is the median vote, with Stevens, Ginsburg, Breyer, and Souter/Replacement comprising the liberal wing; Scalia, Thomas, Roberts, and Alito comprise the conservative wing. So Obama can't actually move the median until one of the conservatives (probably Scalia) or Kennedy himself retires. Given that, the question is how to move the law to the left.

Appointing another Bill Brennan or Thurgood Marshall would be gratifying, but it would not move the law to the left. Recent empirical work by Lee Epstein and others on supermedian Justices suggests that appointment of a moderate, say, right of Breyer but left of Kennedy, would dilute Kennedy's power by allowing Moderate Replacement to write some of the controversial opinions (since there would now be two median Justices) — while the outcomes would be the same, those opinions would likely be, in minor ways, more agreeable to the left. More important, Kennedy would be more likely to join the Court's liberal wing, and on occasion he would. That is because he is more likely to accommodate or to be swayed by an ideoligcally proximate Justice than by an ideologically distant one. There is a pretty big gap from Breyer to Kennedy, and from Kennedy to Alito. A far-left appointment would decrease the odds of Kennedy voting for the preferred liberal result in the cases where these things matter.

At minimum, there is reason to not be dismayed if Obama appoints a moderate rather than a liberal (by which I mean ideology in Court terms; in U.S. politics generally, of course, Scalia and Thomas are radically right-wing, Kennedy is a conservative rather than a moderate, and even Ginsburg is moderate or slightly liberal [Stevens is more of a liberal, but still not a far-left liberal in the way that Scalia is a far-right conservative]).

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6 responses to “Supreme Court: Souter Out (Joe)”

  1. Dean C. Rowan

    On a tangent from Joe’s post, I note this tribute at Balkinization by a former clerk [I think. See below]. I’m not sure Prof. Gerken’s paean achieves the simple effects for which she aims. Okay, Souter seems like a pleasant enough, independent enough, role-model sort of guy. But are we really supposed to believe that “he is never swayed by the political winds that waft through the Court”? Cf. Joe’s “he is more likely to accommodate or to be swayed by an ideologically proximate Justice than by an ideologically distant one.” Perhaps Gerken means mere politics never suffices for Souter, or even that he always resists merely politically motivated outcomes, but it sounds like she’s saying politics doesn’t affect him at all. His fawning former clerk may have some growing up to do. Pace her own view of SCOTUS, she is not acutely “cursed with self-awareness.”
    Somebody please enlighten me about that first sentence of Gerken’s, “As a former Souter clerk, here’s a take on Justice Souter’s legacy.” Isn’t she opening with some sort of dependent clause inadequate to the main sentence? Who’s the former clerk?

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  2. Ruchira

    I think that quote of Joe’s is aimed at Kennedy. Joe thinks that as the swing vote on many 5-4 decisions, Kennedy is more likely to be swayed to cross over to the liberal side if the replacement for Souter is a moderate lefty (ideologically proximate to Kennedy) rather than a predictably hard left liberal.
    And get off your grammatical high horse!

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  3. Dean C. Rowan

    I’m noticing a pattern here. (One’s an anomaly, but two’s a trend.) Another former clerk weighs in. Here Souter wasn’t necessarily left unmoved by politics. More credibly, he “was never an agenda-driven justice.” Prof. Roosevelt’s “It is hard to escape the conclusion that one of Souter’s distinguishing characteristics is his honesty” is also persuasive, assuming the data are correct. But neither Gerken nor Roosevelt worries too much about disguising their transparent desire to lionize the man to the point of caricature, to make a mythical icon of a figure with whom they are closely and conveniently associated. For more on this phenomenon, see Peter Brown’s The Cult of the Saints.
    “The comparable figure that comes to my mind is Cincinnatus,” writes Roosevelt. Well, of course he does. I recall shortly after Souter’s ascent to the Court betting a friend, “Five’ll getcha ten this guy turns out to be another Cincinnatus.” Another mythification: “Reading the long and heated opinions in Casey, now, has something of the drama of a visit to Gettysburg.” Immersed in such drama, who needs civil wars?
    I suppose I should quit complaining about the nostalgia-fueled overheated rhetoric of a former SCOTUS clerk or two. After all, the picture of quietism painted of Souter–Gerken’s claim that he was steadfastly unswayed by political winds, Roosevelt’s reciprocal claim that “Souter’s current position on the left wing of the court owes much more to movement by the court and the country than to any lurch on his part”–aligns with my own ideals. (Alas, it also plays insidiously into our fears of activist judges.) But the comparable figure that comes to mind, to me, would be Crates, as depicted by Marcel Schwob.

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  4. Joe

    Ruchira’s right that that quote was aimed at Kennedy. I’m not entirely sure if that effect has been observed with respect to all justices, or just medians and supermedians — I suspect you’d see the same result everywhere along the spectrum for much the same reasons, but in any event Kennedy is the one who right now needs to be tugged at.
    Another benefit of a moderate appointment is that it might (might) make it easier to get a further-left justice confirmed in the future when there are more openings.
    Anyway, I agree with Dean that Heather Gerken’s tribute is a bit odd, and it’s hard to imagine what she means by her depiction of Souter as apolitical. Also worth noting that the way she describes Souter as a “common law judge” sounds a lot like the way many people describe Richard Posner (although with him they use the term “pragmatist”), who is, perhaps for other reasons, thought of very differently.

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  5. Ruchira

    The Republican senators have already sent a pre-emptive letter of warning to President Obama.

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  6. Anna

    “As a former Souter clerk, here’s a take on Justice Souter’s legacy.”
    Like much bad grammar, the unfixed dependent clause also suggests meaning it probably does not intend. Do only Souter clerks have a take on Justice Souter’s legacy? Or perhaps former Souter clerks have nothing else to offer? I vote the latter. But, then the reflective glory-glomming, tunnel vision, self-congratulation of clerk nostalgia (and most other legal brass ring buffing: law school nostalgia, etc.) has always triggered my gag reflex.

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