Three Supreme Court Myths – The Ninth Justice
by Stuart Taylor, Jr.
At both ends of the ideological spectrum, politicians, activists, journalists, and academics like to stress how big a change the next Supreme Court justice could make in the course of the law. The appointment will, says the conventional wisdom, be among President Obama’s most important legacies.
Many also stress how far to the right (say liberals) or left (say conservatives) of center the Supreme Court has been in recent years, the better to dramatize the need to correct the perceived imbalance.
And the dominant media image has been of "the conservative Court" (recent articles in The Washington Post), or "the Supreme Court’s conservative majority" (New York Times editorials), or a Court "as conservative as it’s been in nearly a century" (Newsweek commentary by my friend Dahlia Lithwick).
All this brings to mind three contrarian theses.
First, it simply won’t make much difference in the next five or so years — if ever — whom Obama picks from the lists of moderately liberal, extremely liberal, and just plain liberal candidates leaked by the White House.
Indeed, I can’t think of a single case or issue that would foreseeably be decided differently depending on whether the nominee turns out to be the most or the least liberal of those under serious consideration.
The Court is by nature quite stable. Imagine, for example, that Obama nominated and the Senate confirmed a person more liberal than either John Paul Stevens or any other current justice. No matter how passionate, or how brilliant, or how persuasive, he or she could move the law no further than at least four others were willing to go. And given the justices’ fierce independence, it’s hard to imagine any of them lurching leftward at the urging of the new kid on the block.