Does Federal Executive Branch Experience Explain Why Some Republican Supreme Court Justices 'Evolve' and Others Don’t?

Abstract

Why do some Republican Supreme Court Justices "evolve" over time, becoming more liberal than they were-or at least more liberal than they were thought likely to be-when they were appointed, while others prove to be every bit as conservative as expected? For nearly four decades, one single factor has proven an especially reliable predictor of whether a Republican nominee will be a steadfast conservative or evolve into a moderate or liberal: experience in the executive branch of the federal government. Those who lack such experience evolve; those who have had it do not. This Essay documents the phenomenon, offers an explanation for it, and draws some tentative lessons.

Since President Nixon took office in 1969, the Senate has confirmed twelve Supreme Court nominees of Republican Presidents. Of these, six have had no substantial federal executive branch experience: Blackmun, Powell, Stevens, O'Connor, Kennedy, and Souter. The six successful Republican nominees who have had substantial executive branch experience are Burger, Rehnquist, Scalia, Thomas, Roberts, and Alito. Although it is too soon to make firm judgments about the two most recent appointees, it is notable that every one of the Justices on the first list has been less conservative than every one on the second list. And preliminary evidence indicates that the pattern will also hold for Chief Justice Roberts and Justice Alito. To be sure, the Court's size means that we are dealing with small numbers, but the pattern is sufficiently striking as to warrant the hypothesis that Republican Justices with prior substantial executive branch experience have enduring commitments to conservative jurisprudential principies, while those without such experience either lack such commitments when appointed or lose them over time.

Keywords: Republican Supreme Court, conservative, liberal, moderate, executive branch experience, evolve