There’s an interesting article at the Boston Review on the shift of conservative liberals toward the Left. Here’s a sample:
When Justices William Rehnquist and Sandra Day O’Connor left the bench last year, conservatives were in an anxious mood: though pleased at the prospect of shifting the Supreme Court to the right, they were worried by the record of past Republican appointments. The refrain in conservative commentary, repeated with special intensity during the Harriet Miers affair, was: Not another Souter. Not another Kennedy. Not another O’Connor. And they might have added: Not another Blackmun. Not another Stevens. Not another Warren.
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.”
To continue exploring the explanation of this phenomena click here.
One reason might be the jurisprudential dead-end which contends that there’s some neutral, value-free interpretation of abstract constitutional provisions. It is simply a self-delusional myth that law, especially the abstract provisions of constitutional, can be interpreted without relying on extra-legal and extra-constitutional values. And which values are chosen is a political decision. That’s the reason nominating and confirming Supreme Court Justices is (and must be) a political process. The myth that it is not is a charade to restrict constitutional norms to their status quo understanding. Consider what Laurence Tribe, once thought the most likely nominee for the Court under a Democratic president, says on this matter:
Alito seems as decent and fair-minded as he is bright, and I don’t doubt his sincerity in separating the results he might like to see from those he concludes the law requires. I simply make a plea to quit pretending that law, life, and an individual’s unarticulated assumptions about both can be entirely separated when assessing what someone’s addition to the Supreme Court would mean for all of us well into the 21st century. . . . Slogans about just following “settled law” as though it were a computer application, sticking to the text’s “original meaning” as if that were a matter of scientific fact, never “legislating from the bench” as if judges ever think they’re doing that, remaining within an imagined “mainstream,” and by all means respecting precedent . . . offer precious little insight into how a justice might actually approach [future controversies over liberty, equality, personal privacy, and government power].
At bottom, any practice as significant as law interpreting law must include, with or without more, some mechanism for appreciating the varied consequences of different interpretations. Absent that mechanism, interpreting law might have no relation to the society it is designed to serve.