In the Boston Review, Jon D. Hanson and Adam Benforado on how the Supreme Court makes justices more liberal.
While there have been a number of relatively reliable conservative justices over the years—Antonin Scalia, Clarence Thomas, and Rehnquist being prime examples—and some important right-shifting exceptions—notably Felix Frankfurter, appointed by Franklin D. Roosevelt, and Byron White, appointed by John F. Kennedy—the tendency in recent decades to drift leftward has been strong enough to gain both popular and scholarly attention. Indeed, Larry J. Sabato, the director of the University of Virginia Center for Politics, has suggested that about one quarter of confirmed nominees over the last half century have wound up “evolving from conservative to moderate or liberal.” . . .
So what actually accounts for this juridical drift? The short answer is that we are not who we think we are. Our inability to predict jurisprudential shifts of Supreme Court justices reflects a much broader phenomenon known to social psychologists as the “fundamental attribution error.” As countless experiments have shown, we generally assume that behavior is controlled by personality, attitudes, choice, character, and will. But these “dispositional” factors are often far less significant than “situational” factors such as unseen features of our environments and subconscious processes within us. By allowing disposition to eclipse situation, we often misunderstand why people behave as they do—and thus are surprised when our predictions fail. . .
At least three types of situational influences can have a large effect on a judge’s behavior and, hence, the extent of their juridical drift: the first is the unusual array of forces that sets judging apart from other lawyerly occupations such as legislating or advocacy; the second is the particular background and experiences of individual judges; the third is all the forces external to the court—including think tanks, the media, the academy, and public attitudes—that appear to strongly influence the judicial decision-making process.