Geoffrey Stone arrogates to himself the "right" to define the mainstream of American constitutional jurisprudence, which, given his position at the University of Chicago, is at least a semi-plausible claim. Are you surprised to learn that Clarence Thomas isn’t in the mainstream, but rather "at the far-right fringe of the bell curve?" Good thing, too, because the mainstream apparently carries justices who are a part of it to the left. Here’s Stone’s wishful thinking (at least that’s what I hope it is) about Roberts:
[L]ike many conservative appointees, there is every reason to believe that a Justice Roberts will gradually drift to the left, following the footsteps of Justices Harry Blackmun, Lewis Powell, John Paul Stevens, O’Connor, Anthony Kennedy and David Souter. Appointed as conservatives by Republican presidents, each of these justices evolved over time. Because they were not tethered to an inflexible ideology, they remained open-minded and continued to learn and to grow during their time on the court. And what they learned was important.
Justices are continually exposed to the injustices that exist in American society and to the effects of those injustices on real people. As they come more fully to understand these realities, and as they come to an ever-deeper appreciation of the unique role of the Supreme Court in our constitutional system, they become better, more compassionate justices. This, too, will happen to John Roberts.
The process Stone describes more aptly applies to representatives, who ought, to some degree at least, to identify with and feel for their constituents. The whole point of giving judges lifetime appointments is to give them the capacity for a kind of judicious distance, so that they apply the law impartially, without respect to persons. Yes, there’s a role for equitable jurisprudence, but that takes us toward Clarence Thomas and a conception of natural law, rather than toward unlimited and illimitable compassion.