I've noticed in several of the Supreme Court threads that some nominees who vow to uphold the law and not "legislate from the bench" are being demonized and called "archconservatives" [which has absolutely no meaning to me]. So my questions are:

What do you consider a conservative to be with respect to a Supreme Court Justice?

What would that make a liberal Justice?

Which side do you fall on and why?

CP

Great questions ConservPat. People are throwing around these terms very loosely. But before we ask whether someone is a "conservative" or a "liberal"-- the most relevant question is whether he or she is a strict constructionist.

Strict constructionists or textualists, hold that when ruling on a matter of constitutional law, we look first to the document (i.e. the Constitution) and link the interpretation to the document. This does not mean that the Constitution is read as if it were 1789 (as some would have us believe). However, it does mean that a ruling on Constitutional law is constrained by the text of the Constitution. Here is a great example of textualism from Antonin Scalia's book A Matter of Interpretation:



Unlike textualists, adherents of the Living Constitution method do not feel as constrained by the actual text of the Constitution and believe instead that the Constitution is flexible and changes as society requires. This appellation is a bit strange, as the living constitution method usually results in anything but flexibility. For example, Roe v. Wade identified a woman's constitutional right to abort. There is no "flexibility" there.

All of this having been said, conservatives and liberals can fall into either camp. At the beginning of the 20th century there was a wave of conservative living constitution proponents that resulted in numerous substantive due process rights of an economic brand -- adhering to business/corporations.

My preference is (and everyone's should be) to have a textualist on the bench. With a textualist it makes no difference if the justice is conservative or liberal-- he or she will simply interpret the Constitution fairly.

However, if we get someone who is bent on pushing their own political agenda it would fall out like this:

Conservative judicial activist : The threat would be to turn back precedent established in the 1930s relating to the Commerce Clause that has laid the ground work for so much of the action that Congress has taken in many areas: environment; employment; civil rights etc

Liberal judicial activist: The threat would be to identify new and novel "rights" that would mandate changes to the fabric of our society-- changes that have not yet found democratic acceptance. Ex. gay marriage.

What do you consider a conservative to be with respect to a Supreme Court Justice?

CP, I was going to answer this question in the Samuel Alito thread:



I’ll try answering both. Judicial activism first appeared in a 1947 Fortune magazine, a few years after justices stopped questioning the constitutionality of the New Deal. Today judicial activism can be summed up in Dred Scott v. Sanford and Roe v. Wade as defined by the Right.

Most people have made up their minds on whether privacy is a right. I’ll focus on slavery, where consensus is unanimous. Dred Scott today is code speak for Roe to the Religious Right. In the 2nd presidential debate there was much ado about Bush promising, in his garbled manner, that he would not appoint a justice to the USSC who disagreed that Dred Scott was judicial activism. In his words:



If conservatives want an expedient revision of history Dread Scott is not the way to go. The 13th - 15th amendments are unnecessary if Dred Scott is judicial activism. Although the following articles in the Constitution were added to bring southern delegates on board, a textualist court would have had to ignore the following politically correct language:





Following the Constitution slavery was codified as part of the nation’s early history and culture with treaties in favor and against it. The states were free to abolish it within their borders, but the states, along with Taney’s court, could not get around Art. IV, Sec. 3, Clause 3 and grant Dred Scott freedom legally. A shame these judges didn’t circumvent the Constitution by performing the legal gymnastics necessary to live up to the label Bush used to describe their narrow interpretation. (I agree that as payback for the scathing dissent liberals would write, Taney and his conservative cohorts overreached their authority by dragging the Missouri Compromise into Dred Scott’s claim. However, to rule in favor of Scott’s freedom would require arguing state emancipation laws trumped the Constitution, a feat more daring than a Constitutional right to privacy trumping a state’s abortion law, all in the backdrop of the Fugitive Slave Act of 1850.)

Although the liberty of association was debated before the Bill of Rights was adopted in 1791 it would take another 146 years for SCOTUS to recognize this penumbra, the only one both sides seem agree on, in De Jonge v. Oregon. Freedom of association “as a concept thus grew out of a series of cases in the 1950's and 1960's in which certain States were attempting to curb the activities of the National Association for the Advancement of Colored People,” and would not have served black slaves prior to the 13th amendment.

I can’t blame conservatives for adapting history to their cause. It works. How could the Left argue Dred Scott was correctly decided, that taking the Constitution and the nation’s history into account Taney’s court got at least part of it right? Conservative talking heads would quickly call Democrats on every social initiative the party has endorsed and position the GOP as the true enlightened party on the airwaves.

You can’t have it both ways in this debate. Either interpreting the Constitution in a textualist/constructionist/conservative manner is always right, independent of evolving public opinion through the decades, or sometimes judicial activism is right, the northern delegates were wrong to barter with the southern delegates in the hopes that the practice of slavery would eventually die off, and the Constitution should’ve been subverted for the good of slaves like Dred Scott.

Textualist/constructionist/conservative are no better and no worse than the living constitution interpretation in this context. I don’t believe there’s a one foolproof method of interpreting the Constitution. Instead, we choose to side with whichever interpretation aligns with our political desires. That's not to say there shouldn't be any structure to interpreting the Constitution, but the USSC is... well, it will almost always be screwed making controversial rulings as far as one side is concerned unless it carefully avoids such cases. Take Brown v. Board for example. The Warren court correctly ruled that separate cannot be equal. Still some believe the issue should have rested with the legislative body. The body that hoped to weed out the institution of slavery by appeasing it instead of outlawing it.

(emphasis added)

Lesly, you are not correct in your assertion that a textualist court would have had to ignore these provisions in the constitution in order to grant Dred Scott his freedom. These provisions cannot be plausibly read to confer a general constitutional right to own slaves. They may support a view that slaves are "property", leading to a guarantee that someone be justly compensated for a "taking" of a slave from an owner (under the fifth amendment). But this is much different from the issue and holding in Dred Scott that the federal government must permit and protect slavery in areas under its control.

Because these provisions that you cite do not textually support a constitutional right to own slaves, Taney was forced to read such a right into the due process clause of the fifth amendment. In fact, this is the first instance that we see the appearance of the concept of substantive due process in our consitutional law. And the concept has been used numerous times since, most notably in the Lochner (where the Court employed substantive due process to strike down a state law limiting the hours of work by bakery employees - conservative activism) and Roe (where the Court used substantive due process to create a constitutional right to abortion - liberal activism).

This strikes me as a tad coy. First off, who uses the term archconservative? I've not seen nor heard that one used. Neo-conservative and far right-wing conservative, moderate conservative, even liberal conservative (??!!), so I can see why the term is meaningless. Nobody uses it.

In today's terms, a conservative SC justice is consistently against individual rights, for corporate rights, and in the litmus test of abortion, against. I'll extend it also to include a dogged hanging on to the absolutist interpretation of language, where only one interpretation is valid. This is of course the conservative interpretation. I might add that conservative SC justices seem to be okay with giving up their power to the Executive branch, and this indicates to me a willingness to go with strong central control. It is a myopic view of law.

Now you might disagree, but you asked.

On the other hand, the liberal SC justice tends to be for individual rights, uncertain about corporate rights, and in the litmus test of abortion, for reproductive rights. I'll extend it to a situational interpretation of language, where the overall meaning is taken in context of history, current situations, and future trends. I might add that a liberal SC justice is not okay with giving up power to anyone. The balance of powers is very important. It is an overarching view of the law, and how decisions at the SC level help shape society. Think Judge Judy.

Now you might disagree, but you asked.

I think it's obvious what side I am on. Why? Because I am not a corporation, I am an individual, and I see the need for women to have reproductive rights. Plus I see the need to restore the balance of power in the federal government.

To me, legislating from the bench is a silly notion. What, the legislation should judge from the forum? Which is it to be? Oh yeah, balance of power, I think some would have us ignore this fundamental principle of government. For example, the gay marriage thing. I am not for it, nor am I against it, and that is exactly the way the law reads. Those against it have to push for an amendment to the Constitution, and this is an admission that the law does indeed allow gay marriage by not disallowing it. Judges who interpret the law this way are said to be legislating from the bench, when in reality, nothing is farther from the truth.

Now you might think my mind is all messed up. Oh well, you asked. So far I have not seen any counter argument that convinces me that my thinking is wrong. On the example of gay marriage, nobody denies that the law actually allows civil marriages, and nobody can prove that marriage is anything but civil. That's because it is law, and law is civil, and that's what judges work with -- not theology.

Reproductive rights are softer. Here, I think one must put a stake in the ground and make a decision. Is it a fundamental right of women to control their reproduction? I say yes. Others say no. I am on the side of judges who say yes, and is that so gosh darn difficult to understand?

Regarding corporate rights, I am dead set against the notion. Again, a stake in the ground. Constitutional rights should not be suspended just because a citizen has to work for a living. Call me an idealist, so be it, but a Constitution that does not apply all the time is not worth the parchment on which it is written.

Oh, I forgot one: welfare. A society that cannot provide gainful employment to all its citizens has to support those looking for work through welfare. Otherwise, you get what should be expected -- lots of unrest, violence, black markets, crime, and possibly revolution. So I am for judges who realize this. I'd like to live in a society that is stable, peaceful, honest, law-abiding, and has a solid government.

I don't see the conservative side being very effective, although the idealism over there thinks it is supposed to be. Reality contradicts.

Harsh? Eh, you asked.

If you think the notion of "legislating from the bench" is a silly notion, then perhaps you do not understand what the phrase means. Judges legislate from the bench when they substitute their will for that of the electorate. They legislate from the bench when they overturn a democratically enacted piece of legislation with no clear directive in the Constitution for doing so. We are a democratic society and that means we as a society get to decide the rules that govern all of us, in a democratic way i.e. majority rules.

Of course, the uber-law of the Constitution can override a statute if that statute violates a specific provision of the Constitution. The problem of "legislating from the bench" arises when a judge pours substance into a procedural provision of the Constitution (ex. 5th or 14th amendment - Dred Scott; Lochner; Roe)

This statement of yours in particular demonstrates a lack of understanding in this regard: Those against it [meaning gay marriage] have to push for an amendment to the Constitution, and this is an admission that the law does indeed allow gay marriage by not disallowing it.

Let's look more closely at this statement. You imply that there is somehow a "right" to gay marriage and therefore opponents must get a constitutional amendment if they wish to ban it. The problem with this view is that there is no legal authority supporting a right to gay marriage (except in Massachusetts currently). Your analysis can't start from some amorphous "right" with no legal authority. It must start from the laws as they currently exist. The law in all states (save Mass.) defines marriage as between a man and a woman. There is no "right" to gay marriage. Which then leaves us to look at the Constitution. I challenge you to find a "right to gay marriage" in our federal constitution! It does not exist. Unless, of course, a judge-- legislating from the bench --- finds one. And in order to do that, he or she would have to, like Taney, pour substance into what is essentially a procedural clause: the 14th amendment due process clause. (As an aside, the judge may try to read the equal protection clause so as to support a right to gay marriage, but that has different but equally problematic issues from a textual and precedential perspective).


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Theology has nothing to do with it. What judges should be concerning themselves with is the laws of the land as they exist. And those laws overwhelmingly ban gay marriage, with the Constitution silent on the issue.

Not to be confrontational, but here is a snippet from Google...






time magazine


irc online
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Again, sorry to quibble. I agree that the language is a bit dramatic "arch-villian" comes to mind. But, then again, that is the intent of those who employe the phrase. The great news is that, whenever the AP or Time Magazine refer to Ted Kennedy or John Kerry, they clearly label them as "arch-liberal"


I'll defer to hayleyanne's analysis of Taney and his finding of substantive due process. I'd just say in response to your post that the Dred Scott decision was not per se a validation of judicial activism, or a living Constitution. Looking back, I think that all of us agree that for the states to outlaw slavery would have been preferable to this decision. Just as most of us agree that we'd rather have the legislative and executive branches actually tackle an issue (say, campaign finance) rather than kicking it to the courts (like Bush did when signing McCain-Feingold). Hearing someone like Alito defer to those who made and passed the law seems to improve on the current status quo.

The words "conservative" and "liberal" meander in meaning. I suppose if a "conservative" judge is a strict constructionist then a "liberal" judge must be a one who creatively interprets the law to be that which he thinks it should be.

Of the two, I'd prefer we had strict constructionists judges. If the law is inadequate then it ought to be the responsibility of the elected legislators to correct it. Frequently, the opposition to a judicial appointee sites some case and declares, "Judge So-and-so condones such-and-such heinous behavior". Well I don't know whether or not the judge condones it, but if the law doesn't explicitly prohibit it, then the judge has made the legally correct decision in finding that a party cannot be held guilty of committing the act.

The most desirable of liberal causes would probably be more easily defended at the ballot box than in a court of law. Since liberals feel that the courts back their positions, they don't even bother voting. Imagine what a turnout there will be in the elections that follow the overturning of Roe vs. Wade. I suspect that will turn the elected government more to my liking.

I'm sorry HaleyAnne, but for someone who talks about looking at laws in a textualist manner, you keep forgetting about a major part of the text of the Constitution. Namely the 9th and 10th amendments.

The 9th and 10th combined make it rather clear that the rights listed in the Constitution are not meant to be all-inclusive, and in fact that there are, indeed, other natural rights, reserved to either the States or the People.

I would certainly think that while Gay marriage, or abortion, are not explicitly enumerated rights, that the right to privacy would certainly be one of those "unenumerated rights", reserved to the people. Then following that right, I can understand where this could encompass the rights to gay marriage or abortion, as both deal with the privacy rights of individuals, particularly from the intrusion of the State into matters that have no bearing on the usual jobs of government.

It would seem to me laws regarding these things would be an unwarranted intrusion into the private lives of people not infringing on the rights of any other person. Textually speaking, of course.

It seems to me that the search for a "strict textualist" is something of a chimera. The plain truth is that the United States Constitution is a somewhat vague document in many ways, and it has to be interpreted. (Simple examples, that have often been debated here and in the highest court: What is "speech"? What is "establishment of religion"? What is a "well-regulated militia"? What is "cruel and unusual punishment"? These are not easy questions to answer.)

I'm trying to imagine a "strict textualist" making judgements only on the "letter of the law." How does she do this? By having a clear idea in her head about what the "letter of the law" is. Like it or not, the judge's political views are going to have an effect on how she interprets the "letter of the law," whether she admits this or not.

It seems to me that those Supreme Court Justices who claim to be "strict textualists" are, in fact, very conservative people who sincerely think that their view of the Constitution is the "letter of the law." It would be perfectly possible for a very liberal Justice to claim the same thing.

Maybe it would be best to have the Supreme Court made up of a good mixture of moderates on both sides.