In my last two posts I described how the New York Times misunderstands the Constitution and highlighted Reason’s great new article comparing conservative and libertarian theories of constitutional interpretation. Well, now I have a chance to put those topics together, in response to yesterday’s big front-pager entitled “Court Under Roberts Is Most Conservative in Decades.”
Times Supreme Court reporter Adam Liptak – generally a sharp and honest broker – surveys some new political science literature and concludes, among other things, that since John Roberts became Chief Justice five years ago, the Court has been moving (modestly) to the right and is now “the most conservative one in living memory.” Ed Whelan debunks both of these empirical claims at NRO’s Bench Memos blog – I disagree with Ed on some legal issues, not least unenumerated rights, but his fisking is worth a read – and I want to add two broad points.
First, the claim that “all” (or even most) judicial decisions can be assigned an ideological value is simply laughable. Are all decisions favoring criminal defendants, unions, and people claiming discrimination or civil rights violations ”liberal” while those favoring prosecutors, employers, and the government “conservative” (as the scholars who maintain the database maintain)? What about union members suing unions or large corporations suing each other? What if the criminal defendant is a Fortune 500 CEO (like Conrad Black and Jeffrey Skilling in this past term’s ”honest services fraud” cases)? What about “reverse” racial discrimination claims like those at issue in Ricci v. DeStefano (the New Haven firefighters case)? What about an oil company suing the EPA? A financial services company suing the SEC (or vice-versa)?
And what about civil rights claims involving the Second Amendment, or the Fifth Amendment’s Takings Clause, or the right to earn an honest living? Are those not ”real” civil rights claims? What if it’s poor people losing their houses to a big developer who promises a town it will create jobs and increase tax revenues? What if it’s black hair braiders who can’t set up their shops without passing haridressing license exams requiring expertise only with white hair styles? What if it’s women who want to buy and carry handguns to defend themselves on their walks home in a dangerous neighborhood? Attempts to code such cases – like attempts to decide them based on “empathy” or support for the “little guy” – are bound to fail.
Second – and this ties together all the criticisms – the labeling of decisions (and courts!) as “conservative” and “liberal” ultimately boils down to results-based analysis that equates law with politics. The liberal political position is to favor abortion rights, separation of church and state, gun control, wealth redistribution, economic regulation, and racial preferences, and to disfavor the death penalty. It is then obvious that court rulings against those positions must be “conservative.” Add in the fact that the researchers performing all these analyses –and reporters writing about them – are themselves quite “liberal” and it becomes all the more alarming when the Supreme Court moves in a “conservative” (= wrong) direction.
But you can’t simply code cases, tally up votes, and call it a day. Is there no difference between a vote to uphold restrictions on partial-birth abortion and one to overturn Roe v. Wade? Is voting one way because of stare decisis the same as voting that way because you think the underlying precedent is correct? Is a vote to overturn the Slaughterhouse Cases and revive the Privileges or Immunities Clause the same as one to “incorporate” via the Due Process Clause?
And what about all those unanimous and “odd bedfellow” cases – the ones where Justices Scalia and Ginsburg are on one side and Justices Breyer and Alito on the other? Are Scalia and Ginsburg simply more “liberal” when it comes to the Sixth Amendment’s Confrontation Clause? Is a judge who votes to strike down economic regulations while also recognizing a broad right to habeas corpus just a “moderate” (or perhaps “confused”)? Or is that judge simply a “libertarian” as a matter of public policy?
While we’re at it, look at the First Amendment. How do you account for the leading pro-free speech justices the last 20 years being Kennedy, Thomas, and Souter? Is a vote allowing a statute that criminalizes certain kinds of disfavored speech “liberal” or “conservative”? (If you have a ready answer, contrast what you think about hate speech laws with what you think about anti-pornography laws.)
Put simply, law matters. Judges are not super-legislators voting on their preferred policy positions; they have different jurisprudential theories, some of which lend themselves more to “liberal” political results, some less, but hopefully it’s the Constitution and statutes that ultimately lead to those results over the long term.
In short, Adam, c’mon, covering the judicial branch is not like covering the political branches. You know the difference between the Court and Congress so don’t allow your readers to think there isn’t one.