A Samizdata editor sent me a communication from his current secret mountain lair, drawing my attention to this item from the Boston Review The Drifters: Why the Supreme Court makes justices more liberal by Jon D. Hanson and Adam Benforado.
Justices O’Connor and Anthony Kennedy—though they remain tied to their conservative mainstays on certain issues, such as federalism—both seem to have embarked on similar leftward journeys, particularly with respect to individual rights and liberties. Appointed by Ronald Reagan in 1981, O’Connor struck a resoundingly conservative chord in her early opinions on women’s and racial-minority rights, only to join with liberal colleagues in cases touching on the same issues over the last 15 years—most strikingly in Planned Parenthood v. Casey, which upheld Roe’s central holding, and Grutter v. Bollinger, which vindicated a law-school affirmative-action program. Kennedy, also a Reagan appointee, was initially celebrated by conservatives as “Bork without the beard.” Yet he later provided key votes to knock down anti-sodomy laws in Lawrence v. Texas and overturn the death penalty for juveniles in Roper v. Simmons—prompting Dr. James C. Dobson, the founder of Focus on the Family, to rechristen him “the most dangerous man in America.”
[…]
Virtually everyone who dons the judicial cloak recognizes that, like most uniforms, it carries significant responsibilities and behavioral expectations—what social psychologists call a role schema. A judge’s role schema includes requirements of objectivity, balance, and restraint that powerfully frame a judge’s actions. As Justice John Roberts put it in his opening statement to the Senate Judiciary Committee during his nomination hearings, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” To guard her own legitimacy and that of the judiciary, a judge must create the impression that her decisions are the inevitable consequence of fair, non-ideological legal reasoning. A nominee who was a fervent advocate before becoming a judge will often learn to present decisions as neutral and arising naturally from the rule of law.
It is an interesting piece, which repays reading the whole thing. As the extract shows, the authors are taking tips from Roland Barthes.
It is a continual source of interest to me that American conservatives are so much distressed by social liberalism, wanting iron rules upheld in personal lives, when they are happy with particularistic treatment for collective entitities (and even pseudo-entities, such as religions, nationalities). But then I want judges to be socially liberal, without being “liberals” in the US sense.
I think the comparative law points are mistaken, but interestingly so. They do not make the error that British journalists often do, of supposing judges in Civil Law systems are just like Common Law ones. But they don’t seem to want completely to acknowledge the radically (literally: at root) different legal and institutional context.
Perhaps this is because it is an uncomfortable fundamental truth that ‘drift’ is the soul of Common Law. Common Law adapts principles derived from facts to new facts. And facts are messy and infinitely varied. Common Law is compromise. “If the facts change, I change my mind. What do you do?”
The hidden assumption of conservatism here is that there is an eternal right answer ex cathedra, against which sinful people must be measured. It is not too far from the way Civil Law purports to apply first principles to every case. And I submit it has a similar consequence: the elevation of the prejudice of the authorities, the suppression of the authority of considered precedent and of real life.
Soi-disant ‘conservatives’ detect enemy action in compromise. They complain about “activist judges”, but define activism as failure to enforce the extra-legal norms that they endorse. Give me Justice Roberts’ conception of the judge’s role as limited, arbitral, pragmatic: dealing with cases, not causes. If you abandon the rule of law and make the justice system into an instrument of social control (as in this more explicit example), you abandon the open society.
About American Conservatives (of which I am one) & “wanting iron rules upheld in personal lives” , many of us are simply distressed at the Sodomy case not for the result (which many of us, myself included, are in favor) but because we are a CONSTITUTIONAL republic & there is nothing in the Constitution about sodomy. So while I support my neighbor’s wish to bugger his mate, and would support the end of laws which purport to end that behavior, since there is nothing in the US Constitution prohibiting anti-sodomy laws, they can’t be found “unconstitutional” by a judge.
The way I would take would be to put a “privacy amendment” in the Constitution – carefully crafted so that it doesn’t let legislators in robes use it to turn over laws they don’t like. Until that fine day, though, we must respect the Constitution enough not to put in things that are not there – or we lose our legitimacy in complaining about laws that trample on rights that ARE in there – such as the right to keep & bear firearms.
Maybe I should have written “some American conservatives”, but I suspect you are in a minority, Clark.
guy
Actually I think you are wrong about “some American conservatives” — I submit Clark’s attitude represents most American conservatives. Most American conservatives want the courts to rule on principle, not the ideology de jour. If Americans are to have abortion on demand then the legislatures should make that decision; if New york wants abortion on demand and Kansas does not then, as soverign entities, they each have that right and authority. It should not be preempted by the courts by inventing some right that is not in the Constitution.
I think the view that we are in favor of “wanting iron rules upheld in personal lives” comes from the more vocal who “claim” the mantle of conservatism; the Pat Robertsons, Jerry Falwells, Pat Buchannans of the world. I submit that most true conservatives do not believe that they represent anything approaching mainstream conservativism. Just because they have a public soapbox does not mean that they speak “the truth.”
Clark and John are right.
Over the years, the courts have made rulings that have been disasters for America. They made up laws that the citizens did not want and the politicians would never vote for.
However, it is laws the left wants to force upon America. We want judges that will put an end to the judicial dictatorship that we have in America.
But isn’t the point of a constitutional republic to protect the minority. I won’t argue that the courts are out of line at times, but just because a court makes a ruling that is unpopular with the majority of the public, doesnt make it suspect. In fact that’s it’s job. What might have happened if each state was allowed to vote on civil rights? The sodomy law, to me, is a perfect example of when the justices have done the correct thing. Why should anyone be able to make criminal what two consenting adults do in their own homes?
Judges drift to the Left because they are seduced by vision of power that Left grants the judiciary. In the post-moderist influenced vision of the judiciary, such as that articulated by Larwence Tribe, it is the moral responsibility of everyone to use whatever power granted to them by virtue of their office to advance the common good as they see it. This vision makes judges more like philosopher-kings who can make sweeping changes based on their own belief in the best policy.
The simple human desire to have an impact on the world and to do good gradually tempts judges into abandoning their traditional role of “umpires” to become policy makers. Since there are few opportunities to create an impact by upholding traditional interpretations of the law, judges find themselves resorting to the novel legal theories of the Left.
Sadly, this trend is destroying the very institution of the judicary just as post-moderism has destroyed academia and journalism. People no longer view these institutions as impartial or object but as mere political partisans. Supreme court nominations are such ugly fights now precisely because we assume that judges will rule based on their belief in best policy, not in tenets of the law.
Duncan
My dear old Dad always taught me that in this country that “the majority rules, with respect for the rights of the minority.” I always understood that to mean that we must do everything reasonable to accomodate the minority but that the minority did not have a veto over the actions of the majority. The only exceptions to this were when the will of the majority stood in conflict with the Constitution.
The left in America has for years seen the courts as a way to circumvent the will of the majority as expressed through the legislatures of the several states. I am absolutely and unalterably opposed to abortion, but if the legislature of my state determines that the will of the majority of people in its jurisdiction is to allow abortion, restricted or unrestricted then that ought to be the law. If I don’t like that then I have recourse to the legislature and/or the Constitutional amendment to try to change that; all of which are subject to the will of the people. If we convince enough people that abortion is wrong then the legislature responds and changes the law. That’s the way it is supposed to work in our Constitutional republic.
The problem with Roe v Wade for example is that it proscribes the states from acting on to suit the will of the majority of their citizens. If the majority of New York wants abortion on demand then they should have it until the majority decides otherwise. Similarly if Kansas wants to ban abortion then that up to them until the majority decides otherwise. There is no prohibition on travel in the United States, the citizen of Kansas who wants and abortion is free to cross the state line to a state where it is permitted, no one is going to stop them at the border. The Kansas law is not a prohibition on the person obtaining an abortion, merely on obtaining one in Kansas. At the end of the day Roe is more about convenience than anything else; the argument that one should not have to be inconvenienced by having to travel to another jurisdiction. On that basis, there are a lot more laws than abortion that would go out the window.
Shannon:
Excellent, you are absolutely correct.
John
I don’t disagree… I don’t oppose abortion personaly, but understand the divide. I too feel that it should be a state level decision and if I don’t like it I can leave that state.
I guess my, perhaps underwhelming, point, was that while something like abortion is perhaps a worthy candidate as an example of where the court system has gone awry, the sodomy law is a poor one since –unless your arguing that it makes god angry or something– it is victimless and therefore is not business of the government, Federal or local.
Just a minor quibble, but as Judge Bork is fond of pointing out, judicial conservatism is not at all to be confounded with certain social attitudes.
Judicial conservatism is hard-wired into German and French judges, (although not Belgian and Spanish and Italian, apparently) but in the common law it is much rarer. The essence is not enforcement of any social norms, but that of a political norms:
– the supremacy of parliament as the representative organ of the people, and the court’s consequent duty to apply the law as enacted by parliament.
– the (subordinate) presumption of individual liberty inherent in a representative democracy.
I suspect that Chief Justice Roberts is a judicial conservative, as is eg Justice Scalia. Justice Thomas is not. In Canada, the former Justice Sopinka seemed to me a judicial conservative, whilst Justice LaForrest the opposite. In Australia, even Justice Kirby is by comparative standards pretty conservative, and he is easily the outlier on the court.
I don’t think that’s a minor point at all. Judicial conservatism, as opposed to conservative jurisprudence is what I’m arguing for, and that Boston reviewers argue against. My point is that the accretion of precedent produces what is condemned as “leftward drift”, even under a desirable judicial conservatism, because the society that judges are required to arbitrate for changes. When someone accuses the court of “drifting”, he is probably saying it should choose to resist social change and/or it should measure precedent against some superordinate priciple, rather than apply the law, including precedent, in the circumstances.
England and Scotland are different in that we don’t have a distinct constitutional court. There is considerable residual jurisdiction at common law and in equity available to the courts to take account of novel situations, but plenty of legislation to be accomodated too.
Duncan
I think that is the key issue; is this something which reasonably ought to be up each state or is there some overriding national interest involved. The fact that there are 50 states, each of which can have its own abortion law, and that there is absolutely no restriction on traveling to another state to satisfy one’s needs, to me argues that the Court should have simply stayed out of the question. In contrast the denial of voting rights I see as of national importance and a citizen of one state cannot simply travel to another to vote.
Although I personally find sodomy repugnant, as you note it isn’t any of my business unless it occurs in a public park or something. So here again I think the Court should probably have stayed out of it, the question is wholly between the citizens of Texas, not the citizens of Texas and some other state or some enshrined Constitutional right; if you find yourself living in a state where your life choices violate the law, no one is holding a gun to your head to stay in that state.
The Lawrence, Roe, et al, arguments could as easily apply to so-called ‘Right to Work’ laws, alcohol control, gun control, etc., any number of areas where one state’s laws are different than another. I suppose at the end of the day I object to the Court ruling on someone’s convenience 🙂
Just one man’s opinion.
Guy – I think you may have identified one of the major issues in the difference between judicial conservatism and conservative jurisprudence. The differences, to my way of thinking, are the result of the conflation of common law means for decisions regarding Constitutional (I believe in GB it’s civil law?) law. The Constitution is the primary law of the land – providing provisions for the rights of the citizenry, the states and the federal govt. As such, under a conservative jurisprudence it says what it means and means what it says. The Constitution is silent on a matter such as abortion, so technically it should be covered under the 10th Amendment – the States get to decide.
The problem comes with the use of common law practices, esp. stare decisis. Under judicial conservatism, stare decisis provides the rationale for making decisions based upon precedent. However, the danger in modern America is that the leftist/activist judiciary and their constituency can play upon this respect for stare decisis precisely by ignoring the Constitution and essentially “making up” Constitutional law. These decisions that are effectively “unconstitutional” now are protected by stare decisis and judicial conservatism.
A conservative jurisprudence, sans the agenda of the moral conservatives, would then be directed by respect for the Constitution over and above adherence to stare decisis. This is what most of the debate is about: the Left want justices that believe more in the power of stare decisis and a willingness to depart from the Constitution accordingly v. a judiciary that holds the Constitution itself as the supreme precedent that cannot be vacated by the whims of a politicized Supreme Court.
SK,
England and Scotland are a common law jurisdictions.
I’m arguing for common law practice and retaining the capacity to ‘make up’ constitutional law, augmenting the Constitution by interpretation. Of course the Constitution is supreme and judgments ought not to contradict it. But the “respect for the Constitution” that you are demanding appears to be something other, not respect for the actual application of the Constitution, but for some abstract values found elsewhere that trump words, facts or principles of Common Law.
A Conservative jurisprudence is a moral agenda. You can only advocate it as distinct from “the agenda of the moral conservatives” because you don’t think of yourself as one. That you have a point of view founded in personal preference may be invisible from that angle, but you are still not saying anything different from the rightists and leftists whose first reaction is: “I don’t like this; it must surely be unconstitutional”.
In contrast the denial of voting rights I see as of national importance and a citizen of one state cannot simply travel to another to vote.
It is not simply a matter of national importance, it is in fact a constitutional issue as the post Civil War amendments gave the federal government the power to correct such infractions.