Does American Law Have a Liberal Bias?
One factor that undoubtedly plays a role in judicial drift over time is experience. Justices Powell, Blackmun, and Stevens each pointed to the years of death penalty cases in which they participated as crucial factors in their loss of faith in the system of capital punishment. Exposed in detail, and repeatedly, to a broken system, they eventually questioned the premises on which their earlier votes had been based. That experience may explain drift on the death penalty but it is not a general explanation for leftward drift. One could, after all, describe a Justice who became more conservative on some issue as responding to negative experience with some liberal doctrine–affirmative action, say. Judicial experience no doubt shapes the views of long-serving judges, but not necessarily in a liberal direction. In the end, I would offer the following provocative suggestion: More often than not, Justices drift left because American constitutional law itself has a “liberal bias.” The judicial p
