Wednesday, October 31, 2007

Liberals/Moderates Good, Conservatives Bad

That's pretty much the thesis of Geoffrey Stone's recent blog post on the University of Chicago's Law Blog. I guess if someone is as far left as Professor Stone, perhaps it is self-evident that liberal jurisprudence is correct and conservatives use the Constitution to further their policy aims. But for most of us who are somewhere in the middle, this article is sorely lacking.

Stone actually starts off well. He correctly notes that the court has moved to the right since the halcyon days of the Warren Court. But since that court had Black, Brennan, and Douglas it was very liberal and it was inevitable that the Court would shift back towards the middle.

He's also right that the plethora of 5-4 decisions last term does not prove that the court is evenly split. The Court only accepts a small numbers of cases and selection bias limits those cases to the difficult ones. When a case is "hard" even like-minded justices will sometimes disagree, so it's not surprising that the court is so divided. This isn't the greatest argument, but it's better than what comes next.

Stone believes the current court is very right wing and contains "five conservative Justices, four of whom are very conservative, and four moderate Justices, one of whom, Ginsburg, is moderately liberal." Whether someone is liberal or conservative is obviously a relative term and depends on the competition. Surely Breyer is a moderate when compared to William O. Douglas but not Clarence Thomas. So Stone starts with the presumption that the Warren Court was proper and anything to its right is conservative.

OK, here comes the good stuff. Stone goes on to define "Liberal" and "Conservative." First comes the liberal justices:

"To begin with, they shared a common vision of the purpose of judicial review. They believed that a primary responsibility of the judiciary is to protect individual liberties, and most especially the rights of minorities and others whose rights might not be fairly protected in the majoritarian political process. They believed that this responsibility was both contemplated and intended by the Framers of our Constitution as a fundamental check on the power of the elected branches of government, and they believed that courts can fulfill this responsibility only by actively interpreting the Constitution to ensure that democracy operates both properly and fairly." (emphasis added)

There is nothing controversial in this statement and it is more or less the views of John Hart Ely and Stephen Breyer. The idea that the courts should ensure Democracy and protect individual rights is a legitimate judicial methodology, albeit one I disagree with.

Stone then breaks down conservatives into three groups:

1) Judicial Passivists - judges who only exercise judicial review when the decisions of the democratic branches are clearly unconstitutional.
2) Originalists - judges who interpret the Constitution according to the Founder's intentions.
3) Conservative Activists - judges who aggressively interpret the Constitution to fit with their policy preferences.

Notice something missing? How about "Liberal Activists?" Stone completely ignores the idea that liberals could be activists pejoratively because he basically defines liberal jurisprudence as a form of judicial activism!

So once Stone is willing to admit that the Court should "actively" interpret the Constitution based on liberal values, what conceptual distinction can he draw between liberal activism and conservative activism? What's the difference between "actively interpreting the Constitution to ensure that democracy operates both properly and fairly" (which of course includes individual rights, a liberal political value) and "aggressively interpret[ing] the Constitution and invok[ing] the power of judicial review to implement conservative political values?" Why is it OK for the Court to decide that welfare payments cannot be terminated without a prior hearing (Goldberg v. Kelly) but not acceptable for the Court to strike down minimum wage laws (Lochner v. United States)? Both cases involve the judges making value judgments and then "actively" interpreting the Constitution in that mold. Even more pointed, what distinction can we draw between Roe and Lochner?

There's no difference. The disagreement is about the initial value judgments the judges make. But it's absurd to say one's opponents are wrongfully interpreting the Constitution because they disagree with one's initial value assumptions. Or at least it's ridiculous to do so without supplying some evidence or argument that one's viewpoint is correct. Stone basically assumes he's right and anyone who disagrees is wrong. It's amazing.

One more short point: It's beyond belief that a law professor would criticize Originalism in 2007 for being about what the Framers intended. The vast majority of Originalists today do not favor Framer intent but focus on clause meaning at the time of the Founding. Certainly Scalia and Thomas are not intentionalists and Scalia has expressly repudiated original intent Originalism on many occasions. Stone has apparently not kept up with the literature, so how can he criticize a methodology he doesn't understand?

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