Super Lawyers
William C. Altreuter

Friday, April 16, 2010

Stuart Taylor Jr., a self-described "conflicted moderate with (for example) a center-left sympathy for gay rights and a center-right discomfort with large racial and gender preferences" contends, apropos of Justice Stewart's pending departure, that "Like some other Republican-appointed justices in recent decades -- Harry Blackmun and Sandra Day O'Connor and, to a lesser extent, David Souter, Warren Burger and Lewis Powell -- Stevens has become markedly more liberal during his years on the court.
Meanwhile, no Democratic-appointed justice has become substantially more conservative over time."

I'm not so sure that this is true, and I didn't have to strain to come up with a counter-example: Felix Frankfurter, appointed by FDR, voted to uphold the expulsion of Jehovah's Witnesses who refused to pledge the flag at school; voted with the minority in Baker v. Carr, the one-man-one-vote case; and was generally viewed as the leader of the Court's conservative faction.

Of course, what is meant by "conservative" in this context is sometimes hard to parse. I'll grant that Stevens First Amendment views seem to have become more liberal, but on the issue of reproductive rights, which is where Taylor seems to hang his hat, it seems to me that Stevens, O'Connor, Kennedy and Souter were actually acting as one would expect a conservative jurist to act, by respecting stare decisis. I think that to say, as Stewart does, that "While many liberals see this trend as a case of acquiring wisdom on the job, conservative critics including Justices Clarence Thomas and Antonin Scalia have claimed that their more liberal Republican-appointed colleagues have been moved neither by wisdom, nor by legal principle, nor by general public opinion, but by the leftward march of the intellectual elite, especially in the media and academia," is utter rubbish, and actually irresponsible.

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