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On the Roberts Court today, the Justices who wanted the job the most are more likely to bend and sway in response to social pressures. The Justices who wanted it the least are most likely to stand resolute.
How could Blackman possibly know which justices wanted the job more or less? And why would earlier ambition make any difference to a justice who already has life tenure? What does it mean to "stand resolute," especially if that involves sticking to previous positions rather than being open minded? And finally, how could anyone distinguish between bending to social pressures and recognizing changed circumstances? Presidents, after all, have in recent years made SCOTUS appointments for political reasons, so standing "resolute" would not seem to be much a virtue in a jurist.
It does appear obvious that Blackman had Chief Justice Roberts in mind as the justice most likely to "bend and sway," as well as the one whose ambition, however modestly expressed, manifested itself early on. As we know from Joan Biskupic's recent biography, the teenage John Roberts applied to a private high school, saying "I won't be content to get a good job by getting a good education. I want to get the best job by getting the best education." And of course, conservatives have angrily reviled Roberts for voting independently on the Obamacare and Census cases.
But is ambition really the explanation for Roberts's independence (or swaying, as Blackman would put it)? Brett Kavanaugh certainly seems to have been every bit as ambitious as Roberts, judging from his confirmation hearing. He repeatedly volunteered his youthful achievements, unbidden by the questioning. He told Senator Leahy:
I busted my butt in academics. I always tried to do the best I could. As I recall, I finished one in the class, first in -- you know -- freshman and junior year, right at the top. . . . I was captain of the varsity basketball team. I was wide receiver and defensive back on the football team. I ran track in the spring of '82 to try o get faster. I did my service projects at the school.
And in answer to Senator Whitehouse:
I was at the top of my class academically, busted my butt in school. Captain of the varsity basketball team. Got in Yale College . . . got into Yale Law School. Worked my tail off.
And to Senator Hirono:
I got into Yale Law School. That's the number one law school in the country. I had no connections there. I got there by busting my tail in college.
Justice Kavanaugh may be resolute by Blackman's metric, but it would be hard to call him modest.
And what of Justice Gorsuch? He seems to have been equally as ambitious as Justice Kavanaugh, and yet he might be said to have swayed "in response to social pressure" by voting to extend Title VII protection to gay and transgender people.
It is always tempting to see multiple virtues in those whom we admire, but the ambition versus resoluteness test does not seem to hold up. More could be said about the real or imagined ambitions of Justices Thomas, Alito, Kagan, Breyer, and Sotomayor, but I think that is enough for now.
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