The Volokh Conspiracy - "Pledges of Centrism":

The Chicago Tribune runs a story under the headline, "Roberts' record on high court defies '05 pledges of centrism":

Despite pledges during his 2005 confirmation hearing to hew to judicial centrism, Roberts has shown himself to be a reliable member of the Supreme Court's right flank—rarely, if ever, disagreeing with its positions on civil rights, gun control, the death penalty, affirmative action and a host of other issues.

That may come as no surprise to those who paid close attention to Roberts' career before his elevation to the high court, but the picture is at odds with the non-ideological face he presented after his nomination.

"I come before this committee with no agenda, no platform," Roberts told the Senate Judiciary Committee in 2005. "I will approach every case with an open mind."

Roberts branded himself then a judicial "umpire" who called the balls and strikes as he saw them, without reference to ideology.

"Some people will like what Roberts has done and some people will be upset about it, but it is hard to describe it as the work of a 'neutral umpire,'" said Christopher Eisgruber, a professor at Princeton University and an expert on the court appointments process....

In his three years on the court, Roberts has never sided with the more liberal members against his conservative brethren in a close case. He's never been that uncertain, critical fifth vote. That role has been played almost exclusively by Justice Anthony Kennedy....

The one thing conspicuously missing from the story is any actual pledge of centrism. A pledge of centrism, or a pledge to view the world more like Justices Kennedy or O'Connor rather than like Justices Scalia or Thomas, actually would be an agenda or a platform. (Some politicians actually run on a centrist platform and with a centrist agenda.)

Pledges to keep an "open mind," to be a "neutral umpire," and to lack an "agenda" or a "platform" aren't terribly meaningful pledges -- but what they pledge is a certain open-mindedness and lack of an overarching grand plan. They don't pledge a centrist ideology, or centrist results, or even a jurisprudence that is likely to reach centrist results.

The fact is that Justices, being mature professionals who have spent decades thinking about many legal issues, are likely to have certain views about the law. They may and should pledge to keep an open mind, in the sense of a willingness to listen to and consider contrary arguments. They may and should pledge to be neutral umpires, in the sense of deciding matters based on what they see as the proper neutral principles. But such pledges aren't pledges of centrism.

Justice Brennan, I suspect, tried to keep an open mind and be a neutral umpire; so does Chief Justice Roberts. That they reach very different results simply reflects the fact that open-mindedness and attempt at neutral decisionmaking doesn't equal either judicial liberalism, centrism, or conservatism.

Thanks to How Appealing for the pointer.

	[Eugene Volokh, June 28, 2008 at 9:43pm] Trackbacks "Pledges of Centrism": The Chicago Tribune runs a story under the headline, "Roberts' record on high court defies '05 pledges of centrism": Despite pledges during his 2005 confirmation hearing to hew to judicial centrism, Roberts has shown himself to be a reliable member of the Supreme Court's right flank—rarely, if ever, disagreeing with its positions on civil rights, gun control, the death penalty, affirmative action and a host of other issues. That may come as no surprise to those who paid close attention to Roberts' career before his elevation to the high court, but the picture is at odds with the non-ideological face he presented after his nomination. "I come before this committee with no agenda, no platform," Roberts told the Senate Judiciary Committee in 2005. "I will approach every case with an open mind." Roberts branded himself then a judicial "umpire" who called the balls and strikes as he saw them, without reference to ideology. "Some people will like what Roberts has done and some people will be upset about it, but it is hard to describe it as the work of a 'neutral umpire,'" said Christopher Eisgruber, a professor at Princeton University and an expert on the court appointments process.... In his three years on the court, Roberts has never sided with the more liberal members against his conservative brethren in a close case. He's never been that uncertain, critical fifth vote. That role has been played almost exclusively by Justice Anthony Kennedy.... The one thing conspicuously missing from the story is any actual pledge of centrism. A pledge of centrism, or a pledge to view the world more like Justices Kennedy or O'Connor rather than like Justices Scalia or Thomas, actually would be an agenda or a platform. (Some politicians actually run on a centrist platform and with a centrist agenda.) Pledges to keep an "open mind," to be a "neutral umpire," and to lack an "agenda" or a "platform" aren't terribly meaningful pledges -- but what they pledge is a certain open-mindedness and lack of an overarching grand plan. They don't pledge a centrist ideology, or centrist results, or even a jurisprudence that is likely to reach centrist results. The fact is that Justices, being mature professionals who have spent decades thinking about many legal issues, are likely to have certain views about the law. They may and should pledge to keep an open mind, in the sense of a willingness to listen to and consider contrary arguments. They may and should pledge to be neutral umpires, in the sense of deciding matters based on what they see as the proper neutral principles. But such pledges aren't pledges of centrism. Justice Brennan, I suspect, tried to keep an open mind and be a neutral umpire; so does Chief Justice Roberts. That they reach very different results simply reflects the fact that open-mindedness and attempt at neutral decisionmaking doesn't equal either judicial liberalism, centrism, or conservatism. Thanks to How Appealing for the pointer.