Aging less than gracefully

This afternoon, I had the pleasure of hearing Ted Olson’s review of the just completed Supreme Court term in a speech before the Washington D.C. chapter of the Federalist Society. Olson recently resigned from the position of Solicitor General of the United States. In that role he was responsible for the federal government’s advocacy before the Supreme Court.
Olson’s speech was, as usual, witty and wise. His basic theme, which will surprise few, was that the Supreme Court had a very bad year from a conservative perspective. Indeed, Olson suggested that the Court now belongs more to Justice Stevens than to Chief Justice Rehnquist. While Justices O’Connor and Kennedy provide the necessary swing votes, Olson finds that it is the 84 year-old Stevens who often provides the intellect and craftsmanship through which the emerging liberal majority is being forged.
Olson did not attempt to explain why this group of Justices — the same ones who have sat together now for ten years (the longest period of time during which the composition of a nine-member Supreme Court has ever remained unchanged) — has shifted so noticeably leftward. I think it’s down to aging. After a certain age, it becomes difficult to retain the hard edge that characterizes strong conservatives. Even Barry Goldwater did not retain it. This, by the way, may be the underlying reason why many conservatives (but not me) favor term limits for legislators.
Olson speculated that the decisions in the detainee cases may have been the product of concern about repeating the civil liberties lapses of past Court’s, most notably in the Japanese-American detention cases from World War II. Here too age may be factor — older judges may tend to be more concerned with how they will look to historians; younger judges may be more concerned with letting the government get on with the business of fighting terrorism.