By David A. Strauss

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The impressive article by Lee Epstein, Andrew Martin, Kevin Quinn, and Jeffrey Segal tells us something illuminating about the behavior of Supreme Court Justices.[1]  But I do not believe that the article tells us what it seems to tell us.  Professor Epstein and her co-authors seem to say that Justices routinely change their views, so that a President should not be too concerned about the ideology of prospective appointees, and the people who might oppose those appointees should not be too concerned, either.  As Professor Farnsworth demonstrates in his excellent commentary,[2] the Epstein et al. paper does not justify such a conclusion, and the authors’ explicit claim is more modest than the tone of the article perhaps suggests.

In any event, I do not think that the Epstein et al. paper refutes, or—again contrary perhaps to appearances—even purports to refute the most plausible version of the "conventional wisdom" that the authors say they are challenging.  I actually think the conventional wisdom is much closer to the view that Epstein et al. embrace—that Justices are systematically unpredictable—than it is to the view they reject.  But whatever the conventional wisdom is, the most accurate account is more complex than either "they all change" or "they never change."

By Ward Farnsworth[*] [pdf]

[Editor's Note:  This piece is a response to a forthcoming article in the Northwestern University Law Review by Lee Epstein, Andrew D. Martin, Kevin M. Quinn and Jeffrey A. Segal, titled Ideological Drift on the Supreme Court:  Who, When and How Important?, 101 Nw. U. L. Rev. (forthcoming 2007).  We posted an introduction to the piece by Epstein et al., 101 Nw. U. L. Rev. Colloquy 127 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/8/ (link).]

In their new paper, Lee Epstein, Jeffrey Segal, Andrew Martin, and Kevin Quinn investigate changes in behavior by Supreme Court Justices.[1]  They conclude that the policy preferences of most Justices change during their careers, and suggest that this should cause Presidents to reconsider the use of nominations to try to change the direction of the Court.[2]  I find the authors' evidence and analysis interesting, but am not yet convinced that any rethinking is in order by the people who pick Justices or care about their selection.  I will begin with a general discussion of the model—the Martin-Quinn scores—that the authors use to generate their findings.  It is an ingenious method that is attracting some wider interest,[3] but its basis and workings have not yet been presented in a non-technical fashion that is likely to be understood well by a legal audience.  One goal of this Essay is to explain it in lay terms.  Then I will consider the particular claims the authors make and, finally, their more general thesis about the predictability of behavior by Supreme Court Justices.  My two conclusions, in short, are that the authors have not proven that consequential surprises in the Justices' behavior are more common than has been generally supposed; and that the authors' advice to Presidents (and others interested in the selection of Justices) is premature, because the behavior of some Justices is more predictable than that of others, and this itself can often be predicted by asking how firmly the Justices demonstrated their views before joining the Court.

By Stephen B. Burbank[*]

[Editor's Note:  This piece is a response to a forthcoming article in the Northwestern University Law Review by Lee Epstein, Andrew D. Martin, Kevin M. Quinn and Jeffrey A. Segal, titled Ideological Drift on the Supreme Court:  Who, When and How Important?, 101 Nw. U. L. Rev. (forthcoming 2007).  Last week, we posted an introduction to the piece by Epstein et al., 101 Nw. U. L. Rev. Colloquy 127 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/8/ (link).]

Long before there was talk of a "Greenhouse effect,"[1] there was talk of Harry Blackmun changing color.  Or at least there was in the chambers of Chief Justice Warren Burger, where I was a law clerk during the October Term 1974.[2] The inspiration for the image we used to describe the 1974 Term came not from the distinguished journalist, only then beginning her career and not yet covering the Court, but from a book by Charles Reich.[3] Our view of the cause of Blackmun's metamorphosis lacked grounding in a theory more general (or elegant) than the susceptibility, particularly of the insecure, to Irish charm.  We had no doubt that Justice Brennan had made Harry Blackmun his project, and we thought (without seeking systematic empirical evidence) that the object of his attentions found them difficult to resist.  I well recall my co-clerk's remark upon seeing a letter from Justice Brennan joining, with praise that seemed excessive, an opinion by Justice Blackmun.  Noting that the join letter arrived within minutes of the opinion, he speculated that they had passed in the halls.

By Linda Greenhouse[*]      

[Editor's Note:  This piece is a response to Epstein et al., Ideological Drift Among Supreme Court Justices:  Who, When, and How Important?, 101 Nw. U. L. Rev. Colloquy 127 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/8/ (link).]            

The growing recognition by political scientists and law professors that Supreme Court Justices can and do change while on the bench is a breath of fresh air on a subject that for much too long has been in the grip of abstract academic thinking and untested assumptions.[1]

By Lee Epstein, Andrew D. Martin, Kevin M. Quinn, and Jeffrey A. Segal      

[Editor's Note:  This piece is the first in a multi-part dialogue concerning ideological drift on the Supreme Court.  Linda Greenhouse's response can be found here, Stephan Burbank's response is here, and Ward Farnsworth's response is here.]        

I. Introduction

When the U.S. Supreme Court invalidated the Bush administration’s plan to use military commissions to try enemy combatants in Hamdan  v. Rumsfeld,[1] the decision fueled more than a national debate over the powers of the President.  It also generated commentary about the ideological composition of the Court.  Conservatives proclaimed that they were just one Justice, just one vacancy, away from victory in Hamdan[2] and a handful of other recent decisions that worked against their interests.[3]  Liberals worried about just as much.[4]