Ted Cruz won’t prevent the next John Roberts.

Ted Cruz Is Promising to Prevent the Next John Roberts. Not Bloody Likely.

Ted Cruz Is Promising to Prevent the Next John Roberts. Not Bloody Likely.

The law, lawyers, and the court.
Feb. 9 2016 4:24 PM

Ted Cruz Won’t Prevent the Next John Roberts

He promises that his hypothetical Supreme Court nominees would never go soft. Not likely.

Ted Cruz.
Ted Cruz speaks at a town hall event on Monday in Manchester, New Hampshire.

Dominick Reuter/AFP/Getty Images

Ted Cruz is very angry at John Roberts. He is so angry at Roberts that on the presidential campaign stump he has begun calling the appointment of Roberts a “mistake.” In a September debate, Cruz went so far as to deride the chief justice as a “liberal.” And as part of his advocacy against the Roberts court, Cruz has been advocating that the court be stripped of its jurisdiction over marriage and that term limits be instituted for justices who cannot be made to fall in line.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

You see, Cruz has a theory about why prior jurists, like Roberts, have not always been made to fall in line. His theory holds that Democratic appointees to the Supreme Court never disappoint their liberal overlords while Republican appointees almost never fail to betray their party. And there is some evidence to back up that part of his thesis. But—as is so often the case with Cruz—he is wrong in his assessment of the problem, as well as the corrective.

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Speaking at a town hall meeting in Iowa last month, Cruz shared his diagnosis of what is known as conservative ideological drift: “Many of the most liberal justices in this country—Earl Warren, Bill Brennan, John Paul Stevens, David Souter, Harry Blackmun, the author of Roe v. Wade—all of those were Republican appointees. … And the reason is simple. Over and over again we keep electing Republican presidents for whom the court is not a priority. And when it comes to a nomination, they take the easy road out.”

Speaking last week in New Hampshire, Cruz repeated this line of argument and pledged that—having spent his “entire adult life fighting judicial activism”—he would not waver in picking hard-line Supreme Court nominees, presumably unlike previous namby-pamby presidents: “I give you my solemn word, every justice that I put on the court will be a principled constitutionalist who will be faithful to the law and will not legislate from the bench.” In the same speech, Cruz added his inverse assessment of how Democrats pick judges, arguing that “the sad reality is, when it comes to Supreme Court nominees, Democrats bat almost a thousand. Every one they put on votes left-wing, knee jerk almost every single time”

Here is where Cruz’s analysis starts to go off the rails. It’s not correct that Democratic nominees unfailingly vote with the left (see, Stephen Breyer). And it’s also not correct that Republican presidents don’t vet or fight for conservative jurists on the courts (see, Ronald Reagan). And it’s patently untrue that Cruz is the first to promise to pack the court with reliable conservatives, while the likes of Richard Nixon and Reagan kicked back and phoned it in from the Oval Office.

Remember in October 2005, when President George W. Bush declared that his Supreme Court nominee, Harriet E. Miers, was “not going to change, that 20 years from now she’ll be the same person with the same philosophy that she is today.” Presidents have been promising steadfast jurists long before Cruz was born. The truth is far more complicated: Presidents just sometimes get worked by their nominees, because ultimately their nominees don’t just work for them.

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It’s established fact that, over their careers, more justices drift to the ideological left than to the right. Oliver Roeder at FiveThirtyEight points to the Martin-Quinn score, which measures judicial ideology across time. Data compiled since 1937 reflects the fact that most justices—up to and including one of Cruz’s favorites, Antonin Scalia—tend to move to the left over the course of their judicial careers.

In an important 2007 study, authors Lee Epstein, Andrew D. Martin, Kevin M. Quinn, and Jeffrey A. Segal set out to demonstrate whether ideological drift was a rarity at the high court. Their empirical findings? “Contrary to the received wisdom, virtually every justice serving since the 1930s has moved to the left or right or, in some cases, has switched directions several times.” Indeed, according to Epstein, justices do tend to vote in accordance with the political philosophies of the presidents who appoint them during their first five to 10 years on the court but after that the correlation fades, often significantly.

Why do Supreme Court Justice “evolve” to the left? When I wrote about this issue in 2005, I floated several theories. Perhaps unsurprisingly, none of them have much to do with Cruz’s power to exert mind control over other autonomous humans. Some say that it is simply the impact of personal dynamics at the court, or of a general moderation of views toward the political center, or the prior work experience of the justices, or the consequence of decades spent encountering real life.

Robert Bork has said that justices “tend to drift to the left in response to elite opinion.” This suggests that Washington elites and liberal academics reward leftward drift.

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Professor Michael Dorf has argued, maybe even more provocatively, that justices drift left because “constitutional law itself has a ‘liberal bias.’ ” Dorf cites a quote from Justice Benjamin Nathan Cardozo, who once wrote that a legal principle has a “tendency . . . to expand itself to the limit of its logic.”

Linda Greenhouse has suggested that being on the court itself tends to change a person:

Writing as a close student of the Court, [Justice Robert Jackson] asked in The Struggle for Judicial Supremacy, ‘Why is it that the Court influences appointees more consistently than appointees influence the Court?’ In other words, his own observation told him that the bare fact of serving on the Court was a transformative experience.

Jon D. Hanson and Adam Benforado made a similar point in a thoughtful piece in the Boston Review in 2006: Maybe it’s just the job itself. They wrote:

The job of judging, unlike most occupations, strongly encourages individuals to see sides of an issue that are otherwise easily ignored. And the information that emerges may help explain why juridical drift is so often leftward. A basic tenet of critical theorists is that perspective matters.  
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They further point out that Justice Anthony Kennedy himself has observed that judging changes ideology for the simple reason that, instead of dealing in abstractions, “suddenly, there’s a real person there.”

What Ted Cruz does not always do is see real humans. This is why he has argued that a severely schizophrenic man who suffered from delusions and hallucinations should be executed. Nor does he see two plausible sides of a constitutional question. In his time as a Supreme Court clerk and later as Texas’ solicitor general, he used the U.S. Supreme Court as a vehicle to push a singular position. As an advocate, that was perhaps perfectly appropriate. But now he wants to promise you—to give you his “solemn word”—that his justices won’t be justices but his loyal warriors, and also his flabby puppets. He also pledges to change the basic structure of the court itself so that justices will pay the price—in judicial independence—if they stray from his path.

What Cruz is promising may or may not come to pass, even if he were to win the presidency. More savvy men than Cruz have been betrayed by their own Supreme Court nominees. Theodore Roosevelt said of Justice Oliver Wendell Holmes Jr. that he “could carve out of a banana a judge with more backbone than that.” Dwight D. Eisenhower once described Earl Warren as “the biggest damn fool mistake I ever made.”  

Drift happens.