Authors Jon D. Hanson and Adam Benforado argue that structural, intellectual, and social factors all play a part in the leftward drift evident in so many justices of the U.S. Supreme Court. Their argument appears in “The Drifters: Why the Supreme Court Makes Justices More Liberal,” published in the January/February 2006 issue of the Boston Review.
The article is both important and interesting for several reasons, including the fact that Hanson, a Harvard law professor, and Benforado, a fellow at Cambridge University, acknowledge that the pattern of liberal drift is real. They address themselves to the concerns of conservatives and explain:
They were right to be concerned. While there have been a number of relatively reliable conservative justices over the years–Antonin Scalia, Clarence Thomas, and Rehnquist being prime examples–and some important right-shifting exceptions–notably Felix Frankfurter, appointed by Franklin D. Roosevelt, and Byron White, appointed by John F. Kennedy–the tendency in recent decades to drift leftward has been strong enough to gain both popular and scholarly attention. Indeed, Larry J. Sabato, the director of the University of Virginia Center for Politics, has suggested that about one quarter of confirmed nominees over the last half century have wound up “evolving from conservative to moderate or liberal.”
Why does this happen? They offer this analysis:
At least three types of situational influences can have a large effect on a judge’s behavior and, hence, the extent of their juridical drift: the first is the unusual array of forces that sets judging apart from other lawyerly occupations such as legislating or advocacy; the second is the particular background and experiences of individual judges; the third is all the forces external to the court–including think tanks, the media, the academy, and public attitudes–that appear to strongly influence the judicial decision-making process.
The situation of judging tends to promote drift because the job itself is very different from previous occupations a judge might have had. Several elements help make the judiciary unique within the legal world: the schemas that judges face qua judges, the sources of information (theories and facts) with which they are confronted, and the structures that promote or limit judicial independence.
But here is their real agenda — concern that conservative justices represent the majoritarian culture and beliefs of American citizens. Look very closely at these paragraphs from their conclusion:
It may be that much of the perceived leftward drift of Supreme Court justices over the last several decades is exaggerated. Indeed, given the shift rightward of the American ideological “center” in that time period, a justice tethered firmly to her fixed ideological anchor could well create the illusion of juridical drift. Whatever its source, the question remains whether a perceived gap between the public and the courts is one that should be filled by making the judiciary still more responsive to majority attitudes. That would be a dangerous mistake.
In the end, the federal judiciary, and particularly the Supreme Court, is one of only a few powerful institutions, along with the academy and the press, that stands much of a chance of hearing the silenced, appreciating their situations, and making their stories known. Indeed, the very institutions that conservatives point to as the great biased hotbeds of the liberal intelligentsia are arguably the institutions with the greatest commitment to–and best situations for–pursuing knowledge wherever it takes them.
It may be that academics tend toward the left and that their conclusions conflict with the intuitions of most Americans. It may be that some judges and justices write opinions that do not always square with the weight of American opinion. And it may be that certain newspapers or journalists are not aligned with commonsense conceptions and in that respect are “biased.” But that is hardly an indictment.
This is unvarnished self-congratulation on the part of these two academics. The elites know best, and it would be a “dangerous mistake” to make the judiciary “still more responsive to majority attitudes.”
R. Albert Mohler Jr.
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