It's Actually Easy to Predict Supreme Court Performance

(Bloomberg Opinion) -- Can you predict the performance of Supreme Court appointees? When President Donald Trump chooses a successor to the late Justice Ruth Bader Ginsburg, as he has said he will do by the end of this week, can he be confident that he will be happy with his choice?

Many people think that the answer is “no.” In their view, judges often stun people, including the president who appoints them.

That’s wrong. Over the last half-century, there have been exactly no surprises.

Let’s divide justices into the following categories: very conservative, moderately conservative, centrist, moderately liberal and very liberal. The categories are crude, but they suggest how justices are likely to vote on important issues, such as affirmative action, environmental protection, gun rights, privacy, campaign finance, immigration and religious liberty.

If you had studied the pre-appointment records of the 17 Supreme Court justices confirmed since 1971, you would have been surprised by the performance of none.

Consider a few examples.

Justice Anthony Kennedy, selected by President Ronald Reagan in 1987 after the Senate refused to confirm the very conservative Robert Bork, had an extensive record as a lower court judge. He was unmistakably conservative, but he also showed a degree of moderation, including sympathy for a constitutional right to privacy.

His vote in 1991 to preserve Roe v. Wade, the 1973 opinion that established a constitutional right to abortion, was hardly shocking. A close reader of his lower court opinions would not have been amazed to learn that he turned out to be a pivotal vote in favor of protecting gays and lesbians.

Justice David Souter, appointed by President George H.W. Bush in 1990, was a centrist. He is often seen as Exhibit A for the proposition that the voting records of Supreme Court choices are surprising. But for those who had read his opinions on the New Hampshire Supreme Court, his centrism was self-evident. In New Hampshire, he was a judge’s judge: cautious, nonideological, closely attentive to precedent.

Justice Stephen Breyer, appointed in 1994 by President Bill Clinton, had an extensive record both as an academic and as a lower-court judge. A specialist in administrative law and regulatory policy, he was a moderate, known to assess facts with great care, and for his respect for specialists and technical expertise.

Before his appointment to the court, he was not a liberal in the mold of Justices William Brennan or Thurgood Marshall, who had argued for bold new departures in constitutional law. His careful, moderately liberal performance on the court fits with what was known about him before his appointment.

Something similar can be said of Chief Justice John Roberts, appointed in 2005 by President George W. Bush. He served only briefly on the U.S. Court of Appeals for the District of Columbia Circuit, but in that time, he voted and wrote as a moderate conservative. While his votes on the lower court tended to please those on the right, he was also a minimalist, focused on the concrete issues before the court. He did not argue for large-scale movements in the law.

Justice Samuel Alito’s performance as a lower court judge was distinctly different. Appointed a few months after Roberts, Alito was more conservative, and he was more willing to rethink precedent — as indeed he has been on the Supreme Court.

As a lower court judge, Justice Neil Gorsuch was a textualist and an originalist, rejecting the idea of growing and evolving constitutional rights and committed to adhering to “the original public meaning” of constitutional provisions. He generally voted in ways that pleased conservatives. But he also displayed a libertarian streak, occasionally protective of immigrants and criminal defendants. Justice Brett Kavanaugh appeared to be a pretty reliable conservative in terms of his votes; he was also circumspect and judicious, showing respect for contrary views.

Gorsuch and Kavanaugh, the two Trump nominees, have not been on the Supreme Court for long. But thus far, their votes and opinions are very much in line with their previous work.

Why, then, do many people insist that it’s so hard to predict the behavior of Supreme Court justices?

One answer is that President Dwight Eisenhower was indeed disappointed and surprised by two of his appointees, Chief Justice Earl Warren and Justice William Brennan, whose very liberal voting patterns came as a shock. Justice Harry Blackmun, appointed by Richard Nixon in 1970, also drifted to the left. Some observers have drawn general lessons from those outliers from long ago.

Another answer is that conservatives in particular have been keenly and publicly disappointed by several appointees of Republican presidents, prominently including Kennedy, Souter and Roberts. It is true that if you want a very conservative justice, all three might be disappointing. But their performance should not have been surprising.

Law is not politics, and judges are not politicians. But if someone tells you that you can’t predict the voting patterns of Supreme Court justices, don’t believe it.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

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