December 7, 2021

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Opinion | The Supreme Court After Trump – The New York Times

3 min read

The answer also matters on a deeper institutional level. Some justices have drifted quite far from their ideological starting points. Harry Blackmun, John Paul Stevens and David Souter come to mind. All were Republican-appointed justices (by Presidents Richard Nixon, Gerald Ford and George H.W. Bush, respectively) who ended their careers as among the most liberal members of the court they served on. Could history repeat itself with any members of the Roberts court?

For two of the three relatively young conservatives President Trump has named to the court, Neil Gorsuch and Brett Kavanaugh, it’s unlikely. There has been a fair amount of academic attention to the question of justices’ “ideological drift.” One of the more interesting conclusions was drawn by Michael Dorf, a professor at Cornell Law School, in a 2007 article, “Does Executive Branch Experience Explain Why Some Republican Supreme Court Justices ‘Evolve’ and Others Don’t?”

Examining Republican-appointed justices since the mid-20th century (these were most of the justices, since Democratic presidents have had bad luck in getting Supreme Court vacancies), the ones least likely to change their ideological stripes were those with substantial previous experience in the federal executive branch. Justices Gorsuch and Kavanaugh fit that description, as do Justices Clarence Thomas, Samuel Alito and Chief Justice Roberts. Earlier, Chief Justice William Rehnquist and Justice Antonin Scalia fit the pattern. Exploring several theories, Professor Dorf concluded that executive branch experience provided “an especially reliable predictor” of whether a justice would retain a conservative voting pattern.

The observation makes sense; as Professor Dorf noted, a nominee who has been an inside player is likely to have left more clues about his views and is more easily vetted than someone who made a career on a distant court in a region with different politics. By contrast, the experience of arriving in Washington, D.C., in midlife, under a bright spotlight, to take up a weighty new job may well shake loose some preconceptions about how the world works. (The biographical description applies to Justice Amy Coney Barrett, who has spent most of her adult life in South Bend, Ind., but her ideological commitments appear so strong that she is unlikely to abandon them.)

The most interesting theory about Supreme Court “evolutions” is suggested by a book that has nothing to do with any court. In “Private Lives/Public Consequences: Personality and Politics in Modern America,” a historian, William Chafe, offered portraits of 10 major public figures, including six American presidents and two first ladies. In each case, Professor Chafe trained his narrative lens on a crisis the individuals confronted that jolted them off course and set them on a new path of accomplishment and leadership.

I read the book when it was published in 2005 and hadn’t gone back to it. But it came to mind last year as I watched Chief Justice Roberts preside over the Senate’s charade of an impeachment trial. From all we know about our intensely private chief justice, he has led a charmed life marked by high ambition and great accomplishment. If he has ever been knocked off stride, the world hasn’t heard about it.

So the analogy with the stories told in “Private Lives/Public Consequences” is far from exact. It is, as I said, suggestive: There’s certainly no evidence that the impeachment trial or anything else about the Trump years presented John Roberts with a personal crisis. These four years may not have shattered any notion he had about how government is supposed to work. But did they maybe leave a dent, some shadow of a doubt about the team he played with, the one that brought him success and high office? I’d like to think that’s possible. I doubt if there’s anyone in Washington more relieved to see Donald Trump leave the scene than Chief Justice Roberts.

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