Selecting Supreme Court Justices: A Dialogue

June 1, 2005 • Commentary
This article appeared in the ABA Focus on Law Studies on June 1, 2005

This excerpt was taken from Focus on Law Studies, published by the Division for Public Education of the American Bar Association, Volume XX, Number 2, Spring 2005.

EDITOR (John Paul Ryan): As a society, we seem to care more today about appointments to the U.S. Supreme Court (indeed, to all federal courts) than 50 or 100 years ago. Is this actually true? If so, why?

Mark Moller (Cato Institute): I’m a humble lawyer, not a political scientist or historian, and so it’s hard for me to say that we care more about the Court than in yesteryear. But the air is certainly thick with doomsday scenarios about the upcoming round of Court picks. Bruce Ackerman, for example, recently warned we are on the verge of a “great transformation” in American government, one that could “revolutionize the relationships between the presidency and Congress, between the federal government and the states, and between the individual and the state.” He calls for Democrats in the Senate to man the barricades.

What is the cause of this anxiety? The answer, at least in part, is suggested by behavioral economics, which tells us we’re inclined to overrate the importance of changes to the status quo and our own little moment in history. That’s surely true of the judicial status quo. People assume that a president’s control over selection of new justices will have much more impact on the Court’s future philosophy than experience suggests.

Take the trajectory of the Rehnquist Court‐​the product of increasingly ideological judicial selection. It’s been celebrated (or excoriated, as the case may be) as the prime mover in a constitutional “revolution,” but it’s not as revolutionary as many commentators suggest. Sure, cases like United States v. Lopez (1995) have given some bite to judicial limits on the reach of the federal government, but it’s not looking to be a very ferocious bite. Last term, the Court—in an 9–0 decision in Sabri v. United States (2004)—rebuffed arguments urging the Court to beef up its scrutiny of federal regulation under the Necessary and Proper Clause. Even Justice Thomas—who favors more robust restraints on federal power than the Court has been willing to impose— concurred on stare decisis grounds. This term, if the Court rules as expected in Ashcroft v. Raich (No. 03–1454)-the case that challenges federal power to regulate intra‐​state drug transactions under the Commerce Clause‐​it may well put to bed a robust vision of the constitutional limits on federal power.

Looking further back, consider that a number of post‐​war “liberal” justices were appointed by Republican presidents‐​including Justices Warren, Brennan, Stevens, Souter, and Blackmun. Five of the seven justices who joined the majority opinion in Roe v. Wade were appointed by Eisenhower and Nixon. And over the last 50 years—which have seen huge swings in the Court’s makeup and ideology‐​only six of 21 justices put on the bench were appointed by Democratic presidents.

This isn’t to say that changes on the bench don’t matter. They do, and there are some reasons to think that they matter much more now than they used to. But there’s also a danger posed by unnecessarily overrating the stakes in judicial selection: namely, that partisan alarmism will poison the atmosphere in which judges are selected, turning nominations into ever more bruising partisan political battles. That’s a problem for us, today, because it enhances the risk that judges who survive these fights will feel at least some emotional attachment to a particular political team—the one that protected and defended them, thereby compromising their duty to interpret the law independently.

Complete Dialogue [PDF, 174 Kb)

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