Author ORCID Identifier

Lee Epstein 0009-0006-5150-653X

Andrew Martin 0000-0002-6532-0721

Kevin Quinn 0000-0002-2919-721X

Document Type

Article

Publication Date

2007

Keywords

Supreme Court, Ideological change, Conservatism, Liberalism, Ideal point estimates, Appointments, Voting patterns

Abstract

After reviewing the relevant commentary in Part II, we deploy state-of-the ­art methods to address these questions. The results, as it turns out, could not be clearer: contrary to the received wisdom, virtually every Justice serving since the 1930s has moved to the left or right or, in some cases, has switched directions several times.

Finding that ideological drift is pervasive, in Part IV we develop the implications of our results for two moments in the Justices' career cycle: the events surrounding their appointments to the Court and the doctrine they develop once confirmed. As to the first, we show that Presidents hoping to create lasting legacies in the form of Justices who share their ideologies can be reasonably certain that their appointees will behave in line with expecta­tions - at least during the Justices' first terms in office. But, even before hitting the first-decade mark, most Justices fluctuate, leading to a degrada­tion of the relationship between their preferences and their votes. The im­plication is clear: contrary to the claims of prominent scholars, the President and his supporters in the Senate cannot guarantee the "entrench­ment" of their ideology on the Court in the long, or even medium, term. As a result, the President may be best off placing comparatively greater emphasis on advancing the interests of his political party-rather than his own ideological interests - through the appointment of Justices designed to appease particular constituencies.

As for the development of doctrine, contrary to the prevailing wisdom, we find that ideological movement can manifest itself in important legal change. To provide but one example, had Justice Sandra Day O'Connor's initial preferences remained stable, odds are that she would not have pro­vided the fifth vote to uphold Michigan Law School's affirmative action program in the 2003 case, Grutter v. Bollinger. The implications of this finding are many, not the least of which is that attorneys' expectations about success (or failure) with particular Justices may rest on shakier ground than they suspect.

We conclude in Part V with a discussion of the prospects for legal change among the Justices of the Roberts Court. Here we consider two plausible scenarios, one in which the current Justices remain relatively true to their current doctrinal inclinations and another in which members move. Either way, we find that legal change is possible - a finding that defies con­temporary expectations about the inertia of Justices and, by implication, the Court in the absence of membership turnover.

First Page

1483

Publication Title

Northwestern University Law Review

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