2015-06-23 – It’s been a tactic of the political right to accuse the political center of being out-of-touch lefitists. That makes the near right the new center and the far right . . . well, not insane. Keep doing this for 50 years and Richard Nixon becomes a socialist and Ronald Reagan a centrist.

This kind of argument is now showing up in analysis of the Supreme Court. A story in today’s New York Times entitled “The Roberts Court’s Surprising Move Leftward” takes a faux statistical approach to characterize the current court as liberal.

Maybe so. Maybe not.

Cases do not get to the Supreme Court by random chance. The justices themselves have a lot to do with the issues they will hear—in two ways. The first way is obvious: the justices simply vote on the cases they will hear. Four votes are required to hear a case. The other way the court influences its caseload is through hints that they give in their opinions—often in dissents. Litigants who notice a friendly attitude in a Supreme Court opinion will exploit that to get their favorite issue before the court.

So, when you say that the Court is moving leftward, you have to be aware of how issues come before the court.

So here’s an alternative hypothesis.

Let’s say that the right wing justices are encouraging cases that lie further and further right on the spectrum. At some point, they lose a justice or two (say, Kennedy or Roberts). Does that mean that the court is suddenly liberal? Or does it mean simply that Kennedy or Robert balked at going over the rightward edge?

Here’s a second hypothesis. It’s not really an alternative hypothesis. It’s a supporting hypothesis.

Let’s say that the U.S. Constitution is an inherently liberal document. Presidents appoint conservative justices, but after a while, appointees lose their loyalty to the political establishment that appointed them and become loyal to the Constitution. This could account for the leftward drift that is often complained of with Republican appointees that become liberals. I don’t remember in my lifetime a justice that drifted the other direction.