The Problem with Predictability

Right-wing activists have made it all too clear that they want President George W. Bush to appoint Supreme Court justices who are "predictable." The longtime refrain of "No more David Souters" has been joined by "No more Anthony Kennedys." Some groups demand a nominee who does not believe that the Constitution protects abortion or gay rights or even privacy; others insist that the next justice should reliably protect economic interests of which they approve. The activists, and according to some reports the White House itself, do not want surprises.

In the law, predictability is usually important. People need to know the rules, and they cannot plan their lives unless they know the law in advance. We expect predictability from our trial court judges, who are meant to follow the law far more than to make it. And of course we want to be able to predict that Supreme Court justices will not ignore the Constitution, or refuse to protect free speech, or permit racial segregation. But in the hard cases that come to the Supreme Court, complete predictability is terrible, because it compromises judicial independence.

When activists want a judge to be "predictable," what are they seeking? Many of them want a nominee who will stay close to something like a party line. Justice William O. Douglas, on the extreme left of the Warren Court, was usually predictable in that sense. Douglas was strongly inclined to rule in favor of those trying to protect freedom of speech or complaining of some intrusion into personal privacy. Civil libertarians always knew that they had a reliable friend in Justice Douglas.

On many questions, Justice Clarence Thomas is Douglas' mirror image. On issues such as affirmative action, abortion, presidential power, separation of church and state, and privacy in general, Thomas's votes fit comfortably with conservative ideology. Of course, Thomas cares deeply about the law; but where the law leaves room for reasonable doubt, it's usually clear what side he's on.

To the dismay of the far right, the votes of Republican appointees Sandra Day O'Connor, Anthony Kennedy, and David Souter have been much harder to predict. To be sure, O'Connor and Kennedy show largely conservative voting patterns. And Souter is no liberal; by historical standards, he's a moderate conservative in the mold of John Marshall Harlan. But all three of them refused to vote to overrule Roe v. Wade; O'Connor voted to uphold campaign finance regulation; and Kennedy wrote the Court's two key opinions vindicating gay and lesbian rights.

Bill Clinton's appointees, Ruth Bader Ginsburg and Stephen Breyer, are also far from predictable. Breyer voted with the Court's pro-Bush majority on the equal protection issue in Bush v. Gore; he also voted to strike down the undergraduate affirmative action program at the University of Michigan and to uphold the display of the Ten Commandments at the state capitol building in Texas. Cautious by nature, Ginsburg refuses to follow the aggressive path marked out by Douglas.

Right-wing activists want to replace O'Connor with someone who can be expected to follow a conservative path -- a justice in the Thomas mold. In arguing for predictability, moreover, they frequently claim that they are speaking of law rather than politics. For at least two decades, many conservatives have argued that the Constitution should be read to fit with the "original understanding" of those who ratified it. Unfortunately, activists are far too willing to find a close fit between the original understanding and conservative ideology.

Nothing in the original understanding justifies the constitutional assault on affirmative action programs. Judges who want to increase the protection of private property, by striking down regulations that decrease the value of property, haven't bothered to ask whether the original understanding supports their enterprise. (It doesn't.) There is little in the original understanding to justify the view that Congress lacks the power to give ordinary citizens the right to go to federal court to enforce environmental law -- but Antonin Scalia, with Thomas' support, has led the Court to say exactly that (without so much as a word about history). It is tempting, and not entirely wrong, to think that some conservative activists follow the original understanding only when it corresponds to conservative ideology -- and that such correspondence is what they want to be able to predict.

It is perfectly appropriate for voters to seek leaders who are predictable, in the sense that their judgments will usually conform to a particular point of view. But members of the Supreme Court should be expected to grapple with the facts and the law, and fair grappling will often lead fair people in unexpected directions. Judges and law clerks often have the experience of trying to produce an opinion that fits a preconceived conclusion, only to find that “it just won't write.” The conclusions of good judges can't always be predicted in advance; their inclinations yield when life -- and law -- turn up unanticipated problems.

In his confirmation hearings, Thomas had it exactly right, with his plea for judicial independence: A judge ought "to strip down like a runner, to eliminate agendas, to eliminate ideologies." In their best moments, principled conservatives have insisted on this principle and attacked liberal judges for failing to follow it. The problem is that Thomas, and some other judges now admired by the far right, have become all too willing to follow agendas and ideologies of their own.

Cass R. Sunstein is a Prospect contributing editor and author of the forthcoming Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong For America (September 2005).