Theodore Roosevelt appointed Oliver Wendell Holmes to the United States Supreme Court, in 1902, because he believed that Holmes would be a reliable vote in cases arising out of Roosevelt’s trust-busting crusade. He had grounds for his faith: he had interviewed Holmes for the job himself, and Holmes had written pro-labor decisions as a member of the Massachusetts Supreme Judicial Court. Two years later, a major antitrust case came before the court—U.S. v. Northern Securities, in which a gigantic railroad company created by J. P. Morgan and James J. Hill was appealing a conviction for violating the Sherman Antitrust Act. Holmes voted for the railroad. The Sherman Act, he explained, was designed to outlaw business practices “in restraint of trade.” Morgan and Hill’s company didn’t restrain trade; it was just big. It might be politically popular to prosecute big business, but there was no law against size. Holmes was in the minority; the conviction was upheld by the Court. But Roosevelt was apoplectic. He stopped inviting the Holmeses to dinner at the White House.
The fickleness, contrariness, and outright perfidy of Supreme Court Justices have exasperated the politicians who appointed them almost since the first days of the Republic. Presidents pledge to put men and women on the bench who will vote to sustain the constitutionality of the policies they support—generally equating this with qualities like “independence” and “adherence to the meaning of the Constitution”—and then watch their appointees, once unhitched from the political leash, stray all over the barnyard, sometimes ending up as heroes of the opposition. Harry Blackmun was appointed by Richard Nixon, in 1970, as part of a plan to make the Court more conservative. Three years later, he wrote the majority opinion in Roe v. Wade.
Sandra Day O’Connor, who was appointed by Ronald Reagan, in 1981, and who resigned from the Court last week, was never quite a hero to liberals. She was not a Blackmun-style boomerang. But she did manage, in nearly twenty-four years of service, to disappoint conservatives with impressive regularity. She was one of the five in a number of five-to-four decisions upholding affirmative action, patients’ rights, environmental-protection laws, campaign-finance reform, the separation of church and state, and abortion rights. We will hear a lot about these votes from people who regret her departure and who loathe her replacement—even before any has been named—so it’s worth remembering that she was also a consistent supporter of states’ rights, and last year she voted with Chief Justice William Rehnquist, her old Stanford Law School classmate, eighty-four per cent of the time.
She was a conservative. What she was not was an ideologue. A lack of ideology was once an honored attribute in a judge. Judges weren’t supposed to have ideologies; they were not even supposed to have, except in the most anodyne sense, philosophies. They needed only something called “judicial temperament,” a sort of inner homing device that allowed them to weigh each case on its own merits and, somehow, always come out right. Professions of such a temperament by nominees and their supporters were, of course, often disingenuous, and sometimes ridiculous. During the hearings on his nomination to the Court by the first President Bush, Clarence Thomas, a graduate of Yale Law School, claimed never to have thought about the constitutionality of Roe v. Wade. He had plainly been coached by people who had learned the lesson of Robert Bork, a nominee who had had his very explicit philosophy, expressed in writings from which he vainly attempted to dissociate himself, tied to him like a block of concrete and had then been dumped into the Potomac.
Bork continues to haunt the confirmation process, a ghost of culture wars past....