538: Supreme Court Justices Liberalize with Age

[Mehmentum]

Supreme Court Justices Get More Liberal As They Get Older

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[Slander and/or Libel]

I wish they would have done a better job explaining what went into the Martin-Quinn score. How do they measure the conservatism or liberalism of a justice in 1920 in a way that's comparable to today?

[bedstuy]

That's one way to look at it.  But, maybe they've stayed the same while country has gotten more conservative on legal/Constitutional questions.

[Mehmentum]

I wish they would have done a better job explaining what went into the Martin-Quinn score. How do they measure the conservatism or liberalism of a justice in 1920 in a way that's comparable to today?

I'm not sure if this helps, but the scoring system does have a website.

[Slander and/or Libel]

Yeah, I clicked through, but it looked like there's not an easy nickel summary. Basically, are the changes they're measuring absolute (changes in ideology in a vacuum, or relative to the justice's own history), or relative (the justice stays the same but the others drift around him or her)?

[/]

I mean, as the Supreme Court Justices get older, so does the nation, and national politics generally veer to the left (at least on social matters) as time goes by. Not surprising.

[MarkD]

I can name two Democratic-appointed Supreme Court Justices who became more "conservative" over the time: Hugo Black and Bryon White.

[○∙◄☻¥tπ[╪AV┼cVê└]

Not according to this.

[MarkD]

I see both of them right there on that graph: Hugo Black is a green line who started at -3.0 and ended up at 0.0. That's more conservative. Byron White is an orange line and his line also goes upwards, ending up at a more conservative point than where he started.

[MASHED POTATOES. VOTE!]

People like Harry Blackmun are good examples.

[politicallefty]

Not according to this.

Justice Stevens got more conservative after 1995? Really?

I see both of them right there on that graph: Hugo Black is a green line who started at -3.0 and ended up at 0.0. That's more conservative. Byron White is an orange line and his line also goes upwards, ending up at a more conservative point than where he started.

Justice Black doesn't really fit in the current political paradigm. His brand of textualism is far removed from the orginalism of current conservative Justices. As for Justice White, he was a limited example of a Democratic appointee not turning out the right way.

[MarkD]

Justice Black doesn't really fit in the current political paradigm. His brand of textualism is far removed from the orginalism of current conservative Justices. As for Justice White, he was a limited example of a Democratic appointee not turning out the right way.

I would say that Justice Black has been the only originalist on the Supreme Court in several decades. Another way to say it is the way Prof. John Hart Ely said it about 37 years ago: that Justice Black is the "quintessential interpretivist."

[politicallefty]

I would say that Justice Black has been the only originalist on the Supreme Court in several decades. Another way to say it is the way Prof. John Hart Ely said it about 37 years ago: that Justice Black is the "quintessential interpretivist."

I don't think Justice Black was really an originalist. Textualism and originalism have some mutual characteristics, but they aren't the same at all. Justice Black was a strict textualist. Originalism tends to be a very conservative and strict constructionist jurisprudence. That's not necessarily the case with textualism. Justice Black took the First Amendment's text to its most literal meaning, that no law whatsoever can abridge the freedoms in specifies.

Textualism itself is neither liberal nor conservative. My judicial philosophy is definitely on the left, but I most prefer to look at the text of the Constitution to support my stance. If you look at a case like Obergefell, originalism would easily dismiss it. I don't think textualism works that way. I would look at the Fourteenth Amendment's Equal Protection Clause as it applies today.

[MarkD]

When I read Black's dissenting opinions in Griswold v. Connecticut, and Harper v. Virginia Board of Elections, I see an originalist, not a textualist. Even his majority opinion in Wesberry v. Sanders, reads like originalism, not textualism (although not a very convincing interpretation of the original intent).

From Griswold: "[The Ninth] Amendment was passed not to broaden the powers of this Court or any other department of 'the General Government,' but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication."

From Harper, the majority opinion: "[T]he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality. ... Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change." The majority cited Brown v. Board of Education in support of that "notion." This assertion prompted Justice Black to reply: "The Court's justification for consulting its own notions, rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be 'shackled to the political theory of a particular era,' and that, to save the country from the original Constitution, the Court must have constant power to renew it and keep it abreast of this Court's more enlightened theories of what is best for our society. It seems to me that this is an attack not only on the great value of our Constitution itself, but also on the concept of a written constitution which is to survive through the years as originally written unless changed through the amendment process which the Framers wisely provided. Moreover, when a 'political theory' embodied in our Constitution becomes outdated, it seems to me that a majority of the nine members of this Court are not only without constitutional power, but are far less qualified, to choose a new constitutional political theory than the people of this country proceeding in the manner provided by Article V." And Black also refused to accept that Brown had been decided by himself and the rest of the Court on a basis that goes beyond the original meaning of the Equal Protection Clause: "In Brown v. Board of Education, 347 U. S. 483, the Court today purports to find precedent for using the Equal Protection Clause to keep the Constitution up to date. I did not vote to hold segregation in public schools unconstitutional on any such theory. I thought when Brown was written, and I think now, that Mr. Justice Harlan was correct in 1896 when he dissented from Plessy v. Ferguson, 163 U. S. 537, which held that it was not a discrimination prohibited by the Equal Protection Clause for state law to segregate white and colored people in public facilities, there, railroad cars. I did not join the opinion of the Court in Brown on any theory that segregation, where practiced in the public schools, denied equal protection in 1954, but did not similarly deny it in 1868, when the Fourteenth Amendment was adopted. In my judgment, the holding in Brown against racial discrimination was compelled by the purpose of the Framers of the Thirteenth, Fourteenth and Fifteenth Amendments completely to outlaw discrimination against people because of their race or color."

[Amenhotep Bakari-Sellers]

Roberts have been more moderate these days, if Trump end up packing the SCOTUS Crt watch for CJ Roberts to moderate his views.

[136or142]

All statutes are written in a general way so that they can be applied to specific cases.  While I don't doubt that there are interpretations of statutes in court rulings that are hard to figure out, the idea that there is one 'textulist' 'originalist' or 'strict constructionist' reading of statutes, laws or the U.S Constitution is pure nonsense.

As such, textulism, originalism and strict constructionism are mostly nonsense terms.

[Southern Senator North Carolina Yankee]

Roberts have been more moderate these days, if Trump end up packing the SCOTUS Crt watch for CJ Roberts to moderate his views.

I think if Kennedy is replaced by a Trump pick at some point, Roberts will by default become the swing vote and thus likely will moderate as a part of being such.

[Gustaf]

Not according to this.

Justice Stevens got more conservative after 1995? Really?

I see both of them right there on that graph: Hugo Black is a green line who started at -3.0 and ended up at 0.0. That's more conservative. Byron White is an orange line and his line also goes upwards, ending up at a more conservative point than where he started.

Justice Black doesn't really fit in the current political paradigm. His brand of textualism is far removed from the orginalism of current conservative Justices. As for Justice White, he was a limited example of a Democratic appointee not turning out the right way.

This conversation reads a bit like Reservoir Dogs.

[Amenhotep Bakari-Sellers]

Even if Ginnsberg will be replaced by a Conservative, by 2018, Roe will go back to the states and SSM will be a local issue.

There is always a light at the end of the tunnel.

[MarkD]

Even if Ginnsberg will be replaced by a Conservative, by 2018, Roe will go back to the states and SSM will be a local issue.

There is always a light at the end of the tunnel.

I don't think overturning Obergefell is going to be practicable; it will be much more easy to overturn Roe.

Furthermore, Ginsberg should be replaced by someone who is objective, rather than someone who is chosen because they have a conservative ideology, but the likelihood of overturning Roe would be as likely either way.