When is a Justice Too Conservative?
I've disagreed with Michael Kinsley ever since I ate 25-cent microwaved burritos in my Ann Arbor apartment while watching Crossfire. He's a true liberal, but he's a good writer and I rarely find him disengenuous.
His piece in today's WaPo is no exception. He lays down "the three meanings of conservatism." It's a simple analysis that, subject to my qualifications below, helps clarify the issues that surround a Supreme Court justice selection. Excerpt:
[Y]ou need to distinguish between three different kinds of judicial conservatism.
First, conservatism can mean a deep respect for precedent and a reluctance to reverse established doctrines. All judges are supposed to be bound by precedent, and it's a bit of a mystery when and why they feel empowered to change course. But this meaning of conservatism is mainly advanced by liberals, who like the idea that conservatism itself will stay the hand of conservative judges in reversing great liberal precedents.
Of course each of these liberal precedents -- school desegregation, Miranda warnings, abortion choice and so on -- was a precedent-buster in its day, making the argument a bit hypocritical. But recent Supreme Court nominees have found that asserting a deep respect for precedent is a great way to reassure senators that they won't overturn Roe , whatever they might think of it on the merits and whatever they actually intend.
Second, a conservative can mean someone who reads the Constitution narrowly and is reluctant to overrule the elected branches of government.
Republicans have been waving this flag for decades, reverencing "strict constructionism" and the Framers' "original intent" while condemning "activist" judges who "legislate from the bench." It's not just that the conservative theory of constitutional interpretation is better than the liberal theory. It's that conservative judges have a theory, while liberal judges are just on an unprincipled power grab. This conceit is what allows Bush to insist that he does not impose any ideological litmus test on judges, as long as they agree with him.
The truth is that Republicans do not have a simple machine that turns the Framers' words into instructions for judges, and Democrats are not entirely bereft of judicial philosophy either. It is probably true that if you rated all constitutional rulings on a scale of literal-mindedness, you would find that on average Democratic appointees are more inclined than Republican appointees to take metaphorical leaps from the Framers' exact words. It may even be true that judges picked by Republicans are on average less likely to tell the elected branches what they may and may not do.
But only on average. On some hot issues -- such as affirmative action, property rights or gun control -- it is Republicans calling for judges to interfere and Democrats who want them to keep their hands off.
The third meaning of conservative as applied to judges is a conservative judicial activist: someone who uses the power of the courts to impose conservative policies, with or without the benefit of a guiding philosophy.
The thing is, what happens when a potential justice has a little bit of all three? Kinsley fails to recognize that some conservatives actually believe in truth. That the family, for instance, is the building block of society. That abortion is murder. That, economically-speaking, a free market works better than a harnessed one. How do such truths work into the three-part framework above? It doesn't.
Opponents dodge the truth by denigrating it as "ideology," and it's not a bad approach. In a pluralistic age when no one agrees on truth, how do you establish it? When you have two inches of print in a newspaper column or a thirty-second talking head appearance, you can't establish truth on higher issues any better than a surgeon could establish the intricacies of open heart surgery. The result? All is cacophony.
Enter the first part of Kinsley's piece. He writes: "The notion is that presidents of all stripes are under some kind of vague, floating obligation to keep the court in ideological balance. This, unfortunately, is a party-out-of-power fantasy. There is no requirement of moderation in the abstract."
And in that, he's right. In an age of cacophony, the nearest we come to accepted truth is what we see at the polls. It's a nasty, brutish, state of affairs, make no doubt about it. But there is no way around it right now, and justices--indirect pawns of the democratic process--will bring their worldview with them to the Court. Warren and Brennan brought it in spades. Some claim not to bring it, like Justice Kennedy, but those justices have merely brought their relativism with them, and the result is often an intellectual mess (like Justice Kennedy).
I'm not saying, by the way, that the justices then use that worldview to trample all precedent. No, that's where judicial restraint plays in, something Warren and Brennan didn't appreciate. The worldview influences, it doesn't dominate. The line gets blurred at times. When, for instance, does a worldview call for the overturn of Plessy v. Ferguson? That's a tough call. It requires prudence, which is, like justice, one of the four cardinal virtues. And in the age of cacophony, a Supreme Court justice today needs prudence . . . in spades.
