The question in the headline may sound insulting when asked about the Supreme Court, but it would hardly raise an eyebrow when asked about any other group of nine lawyers.
When a criminal defense lawyer stands before a jury to argue that his client is innocent despite the contrary impression given by evidence of motive, opportunity and DNA, does anyone think he's speaking from the heart?
When the surgeon's lawyer argues that merely amputating the wrong leg isn't proof of medical malpractice, we take for granted she doesn't believe it herself.
It's a lawyer's job to speak on behalf of the client, without regard to the lawyer's personal beliefs. Why should we expect Supreme Court justices to be different from other lawyers? Why shouldn't we expect them to seize promiscuously upon arguments to support of their positions, like other lawyers?
Evidence that the justices do exactly that is all around us. Only the quasi-religious awe with which we regard the robe-wearing figures who preside from behind the massive altar in the soaring sanctuary of the cathedral on Capitol Hill prevents us from noticing the incoherence of these nine lawyers' pronouncements.
For example, last year, in the much-discussed Caperton decision, Justice Anthony Kennedy concluded that independent expenditures on behalf of a candidate created an intolerable "probability of actual bias." This year, Justice Kennedy wrote the even-more-discussed Citizens United decision concluding that independent expenditures on behalf of a candidate have no corrupting tendency.
In the latter case Justice Kennedy ruled that "the Government" may not regulate expenditures on behalf of political candidates. In doing so, the government—the Supreme Court itself—regulated expenditures on behalf of political candidates, by decreeing that the people have no right to control the influence of corporate money over their own elections.
In 2004, Justice Scalia wrote an opinion giving the 213-year-old sixth amendment a meaning it had never borne before. The same justice proudly proclaims that he doesn't believe in rewriting the Constitution.
In one and the same speech--in the same sentence!--Scalia described his approach to constitutional interpretation as both "textualist" and "originalist." Those are opposite approaches. If the meaning of the Constitution is contained in its text, it's obviously unnecessary to consider intentions unexpressed by the words. Scalia looks at "original intent" only to arrive at results not required by the text itself, which is why he writes 8,500 word opinions purporting to explain the meaning of six words in the text.
Justice John Paul Stevens once wrote that an
If Justice Stevens meant what he wrote, he believed the officer had a duty to understand the Constitution better than four members of the Supreme Court. Do you think he meant it?
In a death penalty case, Justice Stevens argued that the court should defer to "a strong community feeling that it is only decent and fair to leave the life-or-death decision to the authentic voice of the community — the jury — rather than to" a judge. In dozens of other death penalty cases (for example, this one) he has ruled that "a national consensus" exists against allowing the jury to make the life-or-death decision.
The unifying factor isn't the reasons Stevens gives, but the result he advocates: he votes against the death penalty whenever he can think of a reason--any reason--to do so.
The late Justice William Brennan once wrote about the writ of habeas corpus, which allows a judge to vacate a jury's verdict of guilty:
In case you'd forgotten about the "central role" habeas corpus has played in our national crises, Brennan dropped a footnote (note 9) to remind readers that after the Civil War was over, the Supreme Court ruled that during wartime civilians could only sometimes be subject to martial law.
It is not accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century, but also in America from our very beginnings, and today.
Also, the court once considered the case of men incarcerated for involvement in Aaron Burr's fantastic conspiracies of imperial dominion. And during World War II the court denied habeas petitions filed by condemned saboteurs secretly landed by Nazi submarines on American beaches.
Brennan's final example was the court's ruling, in the final months of World War II, that a Japanese-American woman who had succeeded in proving her loyalty could, after three years' incarceration, no longer be held indefinitely in a Utah camp, although the opinion sidestepped the question whether she would be allowed to return to her California home.
Far from being "central" to the Second World War, the Civil War, and the run-up to the War of 1812, these legal disputes hardly even qualify as marginal. It would be insulting the memory of Justice Brennan to suggest he believed what he wrote.