Thursday, August 04, 2005

Roberts' Future

Slate has an article regarding the leftward drift of several Supreme Court justices over the past few decades (Brennan, Powell, Stevens, O'Connor, Kennedy, Souter), the reasons for it and the possibility of it happening to John Roberts.

It really seems very unlikely to happen in Roberts' case, but the theories are interesting nonetheless. The most interesting is this one:
2. Mean ol' Nino This theory holds generally that justices tweak their philosophies and ideologies in response to each other; and specifically, that Antonin Scalia and (to a lesser degree) Clarence Thomas have managed to drive once stalwart conservatives into the arms of the court's lefties. Mark Tushnet, a law professor at Georgetown University, argues that the failure of the Rehnquist Court to achieve the expected rollback of the social revolution spawned by the Warren Court has a good deal to do with Antonin Scalia's failure to lead the court's moderate conservatives. Tushnet suggests in a recent law-review article that Scalia's "acerbic comments on his colleagues' work," and his general tendency to run with constitutional scissors, ultimately drove both O'Connor and Kennedy to form alliances with the court's liberals, particularly David Souter and Stephen Breyer.
What's interesting about this theory is that it has nothing to do with any highfalutin legal concepts, but the simple dynamics of human interactions when nine people are forced to work together in close quarters over many years (remember that the current nine members have all been together for 10 years now).

You'd hate to think that important cases are decided on the basis of personal animosity, but it's got to happen at least once in a while. Fact is that though Scalia and Thomas vote together in almost perfect lockstep, even Thomas will often write his own opinions -- even Thomas doesn't want to go along with Scalia.


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