Cass Sunstein in The American Prospsect on the problem of having a Supreme Court justice whose opinions are entirely predictable:
“Right-wing activists have made it all too clear that they want President George W. Bush to appoint Supreme Court justices who are ‘predictable.’ The longtime refrain of ‘No more David Souters’ has been joined by ‘No more Anthony Kennedys.’ Some groups demand a nominee who does not believe that the Constitution protects abortion or gay rights or even privacy; others insist that the next justice should reliably protect economic interests of which they approve. The activists, and according to some reports the White House itself, do not want surprises.
In the law, predictability is usually important. People need to know the rules, and they cannot plan their lives unless they know the law in advance. We expect predictability from our trial court judges, who are meant to follow the law far more than to make it. And of course we want to be able to predict that Supreme Court justices will not ignore the Constitution, or refuse to protect free speech, or permit racial segregation. But in the hard cases that come to the Supreme Court, complete predictability is terrible, because it compromises judicial independence.”