By David A. Strauss
The impressive article by Lee Epstein, Andrew Martin, Kevin Quinn, and Jeffrey Segal tells us something illuminating about the behavior of Supreme Court Justices. But I do not believe that the article tells us what it seems to tell us. Professor Epstein and her co-authors seem to say that Justices routinely change their views, so that a President should not be too concerned about the ideology of prospective appointees, and the people who might oppose those appointees should not be too concerned, either. As Professor Farnsworth demonstrates in his excellent commentary, the Epstein et al. paper does not justify such a conclusion, and the authors’ explicit claim is more modest than the tone of the article perhaps suggests.
In any event, I do not think that the Epstein et al. paper refutes, or—again contrary perhaps to appearances—even purports to refute the most plausible version of the “conventional wisdom” that the authors say they are challenging. I actually think the conventional wisdom is much closer to the view that Epstein et al. embrace—that Justices are systematically unpredictable—than it is to the view they reject. But whatever the conventional wisdom is, the most accurate account is more complex than either “they all change” or “they never change.”