This post proposes a criterion for evaluating Supreme Court nominees besides their ideology and judicial methodology. I argue that there are three types of changes that occur in jurisprudence, and that the often-overlooked middle type of change reveals as much about justices as either of the others. Justices’ willingness to deploy the middle type of change should weigh as heavily on their selection as do conventional factors.
I. Types of Change
Three basic types of change occur at the Supreme Court. I term the first (and most granular) type of change “outcome/application” change. These are the most nuts-and-bolts doctrinal shifts – the application of an existing doctrine to a new set of facts, or the altering of an outcome. For example, the Batson doctrine – that litigants may not peremptorily strike jurors for certain reasons – originally only applied to racial strikes. Then, the Court expanded Batson to encompass gender-based strikes. This is an outcome-applicational change: the application of an existing doctrine to new facts. Even a reversal of an existing precedent constitutes basic outcome/application change if it simply reapplies the same doctrine and reaches a contrary result.
I term the third (and most global) type methodology change, and it has been discussed ad nauseam. Methodology change encompasses debates about originalism, textualism, living documents, and the like. It is the question of how we approach the problems writ large. Largely due to the work of the Federalist Society in purposefully norming originalism and textualism, we have grown used to debates about methodology change. They no longer affect the legitimacy of the Court, because they have become the accepted battleground for prospectively discussing judicial outcomes with potential nominees.
I term the second type of change mechanism change, and how judges manage it is an under-discussed component of their judicial philosophy. Mechanism change is a candidate’s willingness to subvert or replace existing doctrinal pathways for arriving at outcomes. A mechanism change occurs when the Court generates a new doctrine to address a new problem, or even more significantly, generates a new doctrine to replace an existing doctrine already addressing that problem.
II. Mechanism Change and the Court’s Legitimacy/Capital
Justices do not usually debate mechanism change and its implications openly; or at least, those discussions are couched in seemingly technical, doctrinal terms. But the current justices (as well as the late Justice Scalia) have divided themselves among those who are willing to frequently burn the Court’s capital to generate desirable mechanism change, and those who seemingly believe that mechanism change is a poor use of the Court’s capital.
As Georgetown Law’s Professor Cole has noted, the Supreme Court’s “power depends almost entirely on its public legitimacy.” I believe that mechanism change takes an outsize toll on the Court’s legitimacy among educated observers of the Court: as a practitioner, it is more disconcerting to see a brand-new test cut from whole cloth to replace an existing test than it is to simply see a result reversed. It is not a coincidence that two of the all-time mechanism-change justices – Kennedy and O’Connor – perpetually vex district-court clerks. Given these real costs associated with mechanism change, justices’ decisions about when to expend the Court’s legitimacy to promote mechanism change accordingly reveals a great deal about their priorities and their perception of how much legitimacy the Court has in its reserves.
These decisions do not break down among partisan lines. The three justices I identify as most eager to deploy Court capital to effect mechanism change – Justices Kennedy, Thomas, and Sotomayor – are not united by partisanship or ideology (far from it). Justices that seem most reticent to do the same – Roberts, Scalia, Ginsburg, and Kagan – are likewise far afield.
You can see these debates play out over decades. Justice Kennedy and Justice Scalia sparred in the gay rights troika (Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges) over Justice Kennedy’s mechanism changes. Justice Kennedy, in Lawrence, invoked the “liberty of the person both in its spatial and in its more transcendent dimensions,” not previously an articulated factor in judicial abolishment of a statute. Lawrence, 539 U.S. at 562. His Lawrence opinion generated an entire new doctrine, a constitutional polyglot drawing from equal protection, due process, and anti-stigma rationales. Id. at 575. This is fundamental mechanism change; Justice Kennedy was generating an entire new doctrine to address the problems of anti-homosexual discrimination. Justice Scalia called him out on this mechanism-change deployment of the Court’s legitimacy; from the start of his dissent, he excoriated the majority for using existing strict scrutiny mechanisms that had governed fundamental rights for decades. Lawrence, 539 U.S. at 586 (Scalia, J., dissenting). He accused the Court of using an “unheard-of form of rational-basis review that will have far-reaching implications beyond this case.” Id.
In Windsor, Justice Kennedy expanded on this rationale, reintroducing the concept of “animus” as a fourth ingredient in his home-brew constitutionalism. Windsor, slip op. at *20; cf. Romer v. Evans, 517 U.S. 620, 632 (1996). Scalia again took him to task. Although some of Scalia’s umbrage was likely due to his personal antagonism to homosexuality, he seemed more incensed that Justice Kennedy had invoked a mechanism change to reach a result that is easily reachable through traditional pathways. See Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) (reaching same result through existing intermediate-scrutiny pathway).
Justice Thomas likewise favors mechanism change. He gives stare decisis no real consideration, see, e.g., Goldstein, and he believes that the Court should consistently use its capital to perfect its mechanisms. His clearest articulation of this tendency is his concurrence in McDonald v. Chicago, where he argued that all personal-rights incorporation should occur through the Privileges and Immunities Clause, and not through substantive due process – despite substantive due process being the preferred mechanism for decades. McDonald, at *5, 8-9 (Thomas, J., concurring). This drew fire from even his conservative allies – Justice Alito wrote for the Court that “[f]or many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the SlaughterHouse holding.” McDonald, at *10. Justice Scalia was even more blunt in oral argument, taking to task the petitioner’s attorney when he attempted to travel the Privileges and Immunities path:
JUSTICE SCALIA: And if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due — I mean, you know, unless you’re bucking for a — a place on some law school faculty — (Laughter.)
GURA: No. No. I have left law school some time ago, and this is not an attempt to — to return.
JUSTICE SCALIA: Well, I mean, what you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process? Which, as much as I think it’s wrong, I have — even I have acquiesced in it. (Laughter.)
Justice Sotomayor also seems willing to effect mechanism change when she needs to, although as I explored in a prior post, her mechanism changes are slightly subtler and generally occur in the shadow docket.
On the other side, justices both conservative and liberal attempt to preserve the Court’s resources and to not use them on mechanism change. Justice Ginsburg opposed the motivated, largely unprecedented reasoning that Justice Blackmun employed in Roe v. Wade, wishing instead that the case had been decided on a simple (and established) equal protection rubric. See Chicago Law Critique; see also Washington Post. Other scholars have pointedly acknowledged that such a footing would give the abortion right greater “constitutional legitimacy. Equality Arguments for Abortion Rights, UCLA L. Rev.
Justice Kagan has likewise shown a reticence to alter judicial mechanisms without exceptionally good cause, noting that the Court should avoid “upset[ting] expectations.” Kimble v. Marvel, at *10. And the Chief Justice has long pushed for “narrow decisions endorsed by large majorities,” , which while not exactly the same as avoiding mechanism change, is correlated to the goal.
To sum it up – there is no apparent correlation between ideology and willingness to push for mechanism change. But it’s nevertheless a serious component of a judge’s philosophy.
III. Evaluating Nominees
Presidents – liberal or conservative – should evaluate their nominees on this mechanism-change criterion, although such evaluation will be difficult for faithful lower-court judges. If nothing else, those judges’ scholarly writing may shed some insight into whether they are eager to change legal mechanisms and create new pathways to resolving cases. Importantly, this factor can be analyzed independent of judicial philosophy or partisanship – i.e., President Trump and future presidents will be able to pick among multiple justices who favor their worldview and nevertheless cull justices who favor more (or less mechanism) change. My personal view is that they should select candidates adverse to mechanism change. As people lose even more faith in the presidency and Congress, the Court must retain what legitimacy it has, and judges should avoid wanton mechanism change, no matter which ideological side it cuts toward. Although I am an inveterate doctrine nerd, Chief Justice Roberts has the right idea – sometimes the doctrine must cede to judicial predictability and to conservation of the Court’s most important resource. Mechanism change should be reserved for when the current regime is truly unworkable, and presidents should select judges who exhibit that restraint.