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Seeing the other side
January 12, 2006 10:04 AM   Subscribe

Why does the Supreme Court Make Justices More Liberal? Does it? If so, why, and why more liberal not more conservative?
posted by caddis (61 comments total)

 
entropy?
posted by isopraxis at 10:18 AM on January 12, 2006


This whole enterprise of trying to decide if judges go "liberal" or "conservative" is a misunderstanding of the process of judging.

There are too many instances when the judicial outcome of a case doesn't fit with policy-minded people's labels of liberal and conservative.

If one understands that people have different judicial theories of interpretation and constitutional duty, then one can see that the results are more of a function of that than political/cultural views.

If one understands that, then this drifting idea is incongruous.
posted by dios at 10:18 AM on January 12, 2006


Because the US Constitution is a document of great liberality, and US conservatives hate that and are unwilling to acknowledge that their interpretation is wrong. Justices are honest, upright folks, for the most part, so they rule based on the Constitution.
/outofmyassfilter
posted by OmieWise at 10:20 AM on January 12, 2006


dios : "If one understands that people have different judicial theories of interpretation and constitutional duty, then one can see that the results are more of a function of that than political/cultural views."

But those judicial theories aren't divorced from the broader political psyche of a person.
posted by Gyan at 10:22 AM on January 12, 2006


Ahh, but they are. To suggest otherwise is to ignore the facts.

Look at the recent medical marijuana case. Who was for that? Who was opposed to that? What was the basis for those opinions? Were the personal views on drug laws a part of that?
posted by dios at 10:23 AM on January 12, 2006


Oh, so objectivity is possible after all. Sweet!
posted by AwkwardPause at 10:26 AM on January 12, 2006


dios, there is still conservatism and non-conservatism within the judicial philosophies; constructionism and textualism and judicial restraint is more conservative than a preferred freedoms or similar analysis.

Sometimes they relate in a non-coincidental manner; eg. the reason a preferred freedoms test upholds civil liberties rather than governmental power is a politically liberal attitude.

It's no accident that when people refer to an 'activist court' they mean one accepting of social change, such as gay marriage, allowance of abortion, banning capital punishment, et cetera. None of these are textually protected, and are derived at by feeling the pulse of contemporary societal understanding of indecency, privacy, 'cruel and unusual' and so on.
posted by Firas at 10:26 AM on January 12, 2006


This whole enterprise of trying to decide if judges go "liberal" or "conservative" is a misunderstanding of the process of judging.

I assume you're responding to caddis post and didnt bother to read the article? The argument they make is much more nuanced than that. Not so much about ideological drift than about the effects of encountering situational complexity and and not ideology in the politicized sense but as a world-view concerning security and predictability of interpretation.

Its an interesting article if people would bother to read it.
posted by vacapinta at 10:29 AM on January 12, 2006


dios : "Ahh, but they are."

No such thing. The degree may vary but there's always entanglement. Your MMJ example is focusing on a very specific ends which the judges may not care for. There is probably a calculus where one sacrifices a particular outcome in favor of a better overall environment. Which doesn't mean that the calculus is devoid of politics.
posted by Gyan at 10:29 AM on January 12, 2006


That was an unexpectedly heartening article, with an unsurprising conclusion: Taking time to listen to everyone's experiences with an open mind, and to take into account the complete context of a situation, tends to make one a liberal.
posted by occhiblu at 10:30 AM on January 12, 2006


(And yes, that sound is me patting myself on the back. Heh, didn't mean to sound *quite* so smug...)
posted by occhiblu at 10:31 AM on January 12, 2006


That was a great FPP.
posted by tcobretti at 10:32 AM on January 12, 2006


I would take that even further, occhiblu, and state that careful study of the Constitution and the daily application of it's priciples in the practice of law tends to make one more liberal. OmnieWise nailed it on the head earlier.
posted by JeffK at 10:36 AM on January 12, 2006


Textualism and strict constructionism does tend to be more conservative if you think conservative is defined as not progressive and "conserves" the status quo. The reason is because it is limited; judges with that judicial theory don't go outside the law or extend the law. So in that sense, they are conservative.

Those who don't utilize clause-bound interpretivism are more likely to rule based on personal beliefs about what the should be or to try to implement the will of interests. In that sense, they will change the status quo.

But in that regard, progressive and conservative doesn't have any qualitative component. It is just directional.
posted by dios at 10:36 AM on January 12, 2006


For the same reason that more educated people generally are liberal, such as college professors. The judges get on the bench and become smarter. :-)

I'm only half kidding.
posted by xammerboy at 10:38 AM on January 12, 2006


Well, the genesis of liberalism vs. Burkean conservatism was a directional one too: conservatism wasn't defined as such by accident… Do you not see the link between Republican-style conservatism and preserving the status quo and Democratic-type liberalism and changing it? The comparison is a bit unworkable because economically, Democrats are as vicious right-wingers as any compared to european/south american/asian leftists, but still.
posted by Firas at 10:43 AM on January 12, 2006


Take, specifically, the issues of (a) abortion, (b) homosexuality, (c) capital punishment—in all three sorts of cases, a liberal policy decision (abortion should be necessarily allowed because of a right to privacy, sodomy because of that and different test of indecency, capital punishment should be banned because of an evolved understanding of what's 'cruel and unusual') is arrived at by a non-strictly textualist examination.
posted by Firas at 10:48 AM on January 12, 2006


So judges are either conservative or "activist judges"? Is that what you're trying to imply, dios?
posted by JeffK at 10:49 AM on January 12, 2006


Er, by a non-conservative examination of the law as defined by textualist vs. more interpreted approaches.
posted by Firas at 10:49 AM on January 12, 2006


Again, if one understands the function of judging, it is pretty easy to see why a particular conservative would seem more liberal.

Take an individual who is openly personally opposed to abortion. Who opposes affirmative action. Who holds all those beliefs people attribute to a protypical arch-conservative.

Now, if that person is a clause-bound interpretivist, then suddenly that person will be put in the position of having to uphold Roe v. Wade. That person will have to uphold any number of precedents which were an anathema to their prior cultural views. Because of the application of their theory of interpretation, that person votes in cases in ways that lead to results that seem more liberal.

The rub is that political conservatives will more likely be a judicial conservative (which tends to be a strict constructionist type view). If a very liberal person (such as Ruth Bader Ginsburg) gets on the Court, she is less likely to be consistently a strict constructionist. She is more apt to vote for other reasons which might reflect her personal views. Though, if she does vote in a strict construction turn, the result might seem more conservative than one would expect. But as she is less likely to do that, the "drift" will be more apparent in political conservatives than political liberals.
posted by dios at 10:52 AM on January 12, 2006



If one understands that people have different judicial theories of interpretation and constitutional duty, then one can see that the results are more of a function of that than political/cultural views.


Yes, the results are more than just a function of a judge's political/cultural views. However, they can't be entirely independent of one's political/cultural views. Our minds do not work like that. We perceive information through the filters our experiences have built within our minds. Pure objectivism is not possible.
posted by tcobretti at 10:57 AM on January 12, 2006


In effect, you're holding that the reason that those with conservative judicial views have a tendency to rule for unexpectedly politically liberal views after being appointed to SCOTUS is that the decisions of the past have made political liberalism the conservative/precedent-bound stance?
posted by Firas at 10:58 AM on January 12, 2006


my guess is that today's "conservatives" aren't really conservative at all and don't understand the foundations of conservatism

they're cultural conservatives who try to politicize culture ... not political conservatives who try to maintain the political status quo

today conservatives are a reactionary version of 60s radicals ... they want to overthrow the system in significant ways

a supreme court justice is someone who finds himself having to conserve the rule and tradition of our laws and constitution ... which, ironically, are based on old school liberalism ... and in many cases, that winds up being percieved as a liberal drift, when it's actually conservative in nature

i don't think the terms liberal and conservative mean too much these days
posted by pyramid termite at 11:00 AM on January 12, 2006


JeffK, I think it's more than just the constitution, though. I liked the idea that putting actual *faces* to these problems can change your outlook.

I think that most thoughtful conservatives do believe that they are, in good faith, upholding the constitution. But I think, really, a lot of that is based on an idealism that doesn't take into account the society we're living in. "Everyone should be able to support himself on his own, without special help" is a philosophy I think makes sense, in a vaccuum. But I get the sense that some of these judges who might believe that get to the Supreme Court and suddenly realize how un-vaccuum-like our society is. Confronted by smart, articulate lawyers arguing the various ways life might be stacked against pregnant women, for instance, or blacks applying to schools, or fill in the blank, and having to actually *listen* to and evaluate those arguments about society's unfairness can open one's eyes to the unconstitutionality of many accepted laws.
posted by occhiblu at 11:03 AM on January 12, 2006


In effect, you're holding that the reason that those with conservative judicial views have a tendency to rule for unexpectedly politically liberal views after being appointed to SCOTUS is that the decisions of the past have made political liberalism the conservative/precedent-bound stance?
posted by Firas at 12:58 PM CST on January 12


The country is inherently progressive. To what end, who knows. But it inherently progressive and impossible to stop. You are correct in acknowledging Burke's view on conservatism; it is a slowing device, not a reversing device. And here is the distinction I was trying to draw between political conservatism and judicial conservatism. Judicial conservatism is Burkean, which is why it values strict construction.

As pyramid termite rightly pointed out, political conservatism (at least to the exent it being addressed in this article and the popular debate about Alito) is about various moral stances. Those moral stances are not something that can be forced by strict constructionism unless they are already exist. When they don't exist, and the judge is required to apply the law and uphold a certain position, it will look like that judge is "drifting" when really they are just doing their job and mechanically interpreting the law. The same dynamic won't occur when a person is politically liberal (but it can; see Bowers v. Hardwick).
posted by dios at 11:12 AM on January 12, 2006


This whole enterprise of trying to decide if judges go "liberal" or "conservative" is a misunderstanding of the process of judging.

Maybe at lower levels. But there's a substantial body of evidence that, overwhelmingly, modern Supreme Court justices simply vote their policy preferences. See work by Jeff Segal, Harold Spaeth, Kevin Quinn, Andrew Martin, and others; searching for stuff by any of them should lead you to the central disputes.

Your medical marijuana example is, as Gyan notes, simply an example of strategic voting, similar to voting for a killer amendment to sink the larger bill.
posted by ROU_Xenophobe at 11:13 AM on January 12, 2006


Many of the decisions that make headlines relate to criminal law. Criminal law cases generally are appealed when the defendant loses. The state almost never appeals anything in criminal law. As such, anytime a judge has a criminal matter in front of him/her, that case has been previously ruled in favor of the state at every level. Lower judges are mostly elected. They get elected by proclaiming to be tough on crime. If they are perceived as not being tough on crime, then they lose their jobs. They have a strong self-interest in not overturning criminal convictions. So they don't. These cases get to the Supreme Court. The Supreme Court Justices do not have the re-election problem. They can do what is right without fear of losing their job. Therefore, they wind up being able to be more liberal than the lower court judges, and sometimes more liberal than they themselves were when they were on a lower bench.
posted by flarbuse at 11:16 AM on January 12, 2006


This is a great article. It seems a shame that Dios isn't responding to any of the points that it made...
posted by klangklangston at 11:33 AM on January 12, 2006


they still got them negro bathroom attendants and elevator operators at the supreme court?
posted by quonsar at 11:46 AM on January 12, 2006


the constitution is a defining document of liberalism. defending it makes one a liberal. even conservatism is supposed to be about conserving the *traditions* of liberalism. what passes for conservatism today is more like post-conservatism.
posted by 3.2.3 at 11:48 AM on January 12, 2006


alternative-post-progressive-trance-house conservatism.
posted by quonsar at 11:50 AM on January 12, 2006


It's got a bad beat and you can't dance to it.
posted by Armitage Shanks at 11:51 AM on January 12, 2006


It seems a shame that Dios isn't responding to any of the points that it made...

Personally, I'm finding Dios's discussion illuminating. He's definitely at his best when he's discussing issues of law and jurisprudence.
posted by PeterMcDermott at 11:56 AM on January 12, 2006


Yeah, I find Dios and pyramid termite's contributions to have been useful. As far as discussing the article itself, occhiblu has done a good job explaining the argument. I think we can all agree that increasing liberalism is inherent in the court as time passes, the disagreements are just about 'why' (Dios argues that it's built into the system; occhiblu argues it's a rational standpoint to arrive at upon viewing the complexity of the issues and being in such power; I also liked flarbuse's idea.)
posted by Firas at 12:03 PM on January 12, 2006


What do you mean klangklangston? I think it is a great article as well. I just have a difference of opinion, although it is not too far from my view. Is that not a proper thing for me to bring up?

The vast majority of the article is a very good explanation of the various theories and opinions on the matter. And I find it all enlightening. It is only when they get to their conclusion that I part with the article. But even there, I don't think I am that far away. Case in point, this comment:

It may be that much of the perceived leftward drift of Supreme Court justices over the last several decades is exaggerated. Indeed, given the shift rightward of the American ideological “center” in that time period, a justice tethered firmly to her fixed ideological anchor could well create the illusion of juridical drift. Whatever its source, the question remains whether a perceived gap between the public and the courts is one that should be filled by making the judiciary still more responsive to majority attitudes. That would be a dangerous mistake.

I would agree with that sentiment and it comports with the view I am suggesting.

The process of judging requires fidelity to many different rules under the Constitution, statutes, precedents that don't bind people in their personal situation. If you ask a person, "should abortion be legal" that is a policy question that their opinion is not constrained with. The answer relies on a person's individual views. But when they are asked that as a judge, they don't answer the question on their personal views. They are constrained by the law. Popular views and definitions of conservative and liberal political viewpoints may change, but the judge is still anchored by the law. That view is echoed in the article and my comment above.

Tribe (as cited in the article) likes to argue that Judges should just make the decision based on their personal views. For him, the drift wouldn't have a functional cause. Under Tribe's view, a judge that exhibits drift to liberalism is one that is showing an awakening to the virtue of liberalism. I disagree with him. Of course a judge is not an automaton and has beliefs, but they are also able to consciously limit their personal preferences if they think they conflict with the law. But Tribe feels judges should be unconstrained, and I disagree with him. That is, I don't think that is the way it ought to be.

But Posner makes the point that I think I am making:

The experience of being a judge is bound to moderate one’s views. When you are dealing with large doctrinal policy issues in a rather abstract way, it’s very easy to allow your general outlook on things to carry you to foreordained conclusions. But when you are actually forced to consider both sides of the case, often you realize there is more to be said on the other side of the case than you might have thought. So a lot of statutes that I would have ridiculed as preposterous interventionism in the economy, when looked at up close in the context of the specific case, make more sense. I have learned there is more to be said for some of these interventionist laws than I had initially thought.

The process of judging effects decisions. It is what I think is the cause of any perceived drift. The abstract political views are inconsistent with the process of judging, so a "drift" is perceived. The author's conclusion goes further. I don't think it is as the authors say that the intelligentsia and the judiciary will naturally protect us better than our democratic views; that judges realize they need to be more liberal because it is more right. That conclusion does not follow and is just an advancement of the authors view; I, myself, would not want to be a member of such a juristocracy.

Look, the authors have an agenda. While I think it is a very interesting article and well written and thought out, I disagree with their point of emphasis in their over-all conclusion. They are trying to suggest one view of the law, and it is one I don't agree with it. But I think there point is perfectly valid and don't think they are wrong. I just disagree.
posted by dios at 12:08 PM on January 12, 2006


By the way, Third Circuit Judge Becker in the Alito hearings just agreed with me (and Posner) and said something to the effect about his previous held political views don't matter when analyzing Alito and "You become a different person when you take the oath to become a judge. As a judge, you are constrained by the law and precedent."
posted by dios at 12:26 PM on January 12, 2006


dios, what you're saying is more or less what I woudl guess, but I'd phrase it differently: I'd say that in the SCOTUS, you can be brought face to face with the fact that you are the last court of appeal for this matter.

That, in short, on the SCOTUS, the human stakes are higher than they are in other courts.

I'll differ ffrom you, though, in speculating that you won't see as dramatic an effect on lower courts. After all, you can still be a hard-ass in the district court, if you know that the case could go to the SCOTUS.
posted by lodurr at 12:37 PM on January 12, 2006


juridicaradicalactivism!
posted by arialblack at 12:39 PM on January 12, 2006


All of this is quite interesting, and not unexpected, to me. But I'd also like to know what the relationship is to "conservatism" and "liberality" (judicially speaking) of the kind of law that you practiced.

For example, were you in criminal law or civil law? Were you a prosecutor or a defense attorney? If you were involved in criminal law, what kind of cases did you get? If you were a judge, what kinds of cases did you hear in the lower court? Or were you a law professor, who never heard cases at all?
posted by lodurr at 12:40 PM on January 12, 2006


...about one quarter of confirmed nominees over the last half century have wound up “evolving from conservative to moderate or liberal.”

Option 1) Start left, stay left
Option 2) Start left, drift right
Option 3) Start right, stay right
Option 4) Start right, drift left
Option 5) Start center, stay center
Option 6) Start center, drift left
Option 7) Start center, drift right

This article starts with the statement that 1/4 of the nominees went for Option 4, but doesn't give a figure for any other option. How do we know that an equal number of nominees aren't drifting the other direction? You can even argue that every nominee drifts one way or the other, so that would cut the number of options down to 4 and the 1/4 figure would then just be a statistical wash.
posted by forrest at 12:50 PM on January 12, 2006


I think there's far too much generalization going on.

There's a practical explanation for leftward drift: the post-war Republican Presidents have been inconsistent, at best, in their zeal to appoint commitedly conservative judges. Beyond personal priorities, they have generally had to deal with Democratic-majority Senates who could withhold confirmation to conservative appointees.

But you can see it even with George W. Bush. With 55 Republican Senators, and an unlimited well of proven conservatives on the lower courts and elsewhere in the legal elites, his first pick was John Roberts -- the meaningfulness of whose conservative record was certainly subject to debate -- and his second pick was Harriet Miers, who not only had no conservative record, but turned out to be pretty liberal in important sympathies. He turned to Sam Alito only when his hand was forced.

When a Republican President nominates a committed conservative on purpose (as with Rhenquist and Scalia) or by accident (Thomas) that Justice stays conservative. When a Republican President nominates someone with other things in mind, it's not surprising that he ends up with a liberal some of the time and a moderate most of the rest of the time.

This is why I can't why liberals are so exercised by Alito. Roberts and Alito are basically a swap for the 2004 - 2005 court retirements / death -- Roberts is likely to end up the O'Connor swing vote, while Alito will simply end up replacing the Rhenquist predicable vote. No net change on the Court at all.
posted by MattD at 12:55 PM on January 12, 2006


My guess is that they no longer have to appease the essentially conformist dictums that are inherent in any culture and a basic required badge of the ambitious. The status quo rewards their own to power. That's only natural. Maybe even beneficial towards the achievement of a stable country/civilization. I don't think SCOTUS judges become more "liberal", I think they simply become older, wiser and more compassionate and that happens to dovetail nicely with the fact that the constitution is a wise, compassionate, humanist document founded on the progressive expansion of individual liberty, equality and justice and even knows when to keep it's mouth shut on areas regarding the arena of human experience it has no business with. That in a nutshell is a the text definition of liberal and I would dare venture democracy and a true democracy should never rest in the expansion of those areas.

In the end there's only one true metric of whether the country is being faithful to the intent (yea spirit) of the Constitution, and it is that expansion of individual liberty, equality and justice. Anything else is false no matter how much legalistic kung fu is employed to justify, obscure or complicate. The law is not an end unto itself and was never meant to be, it has a deeper well from which it springs. American law drinks even deeper from that well spring. In theory anyway.
posted by Skygazer at 1:00 PM on January 12, 2006


MattD, the article actually addresses that at some length.

One fashionable theory is that, in our post-Borkean world, presidents must put forward nominees who can survive the contentious confirmation process—thus, ones who have shorter paper trails and less ideological baggage. This “advice and consent” bottleneck allows through only candidates with unpredictable judicial dispositions.

While this has some validity, presidential buyer’s remorse is as old as the process itself and may develop even when a president nominates a lifelong ally or a well-known public figure. ....

The conventional story also misses the fact that justices often drift slowly over their tenures—not as if they were rudderless but as if their ideological bearings changed mid-course. ...

Moreover, the conventional story does not explain why the drift is so often to the left.

posted by occhiblu at 1:07 PM on January 12, 2006


The experience of being a judge is bound to moderate one’s views. When you are dealing with large doctrinal policy issues in a rather abstract way, it’s very easy to allow your general outlook on things to carry you to foreordained conclusions. But when you are actually forced to consider both sides of the case, often you realize there is more to be said on the other side of the case than you might have thought. So a lot of statutes that I would have ridiculed as preposterous interventionism in the economy, when looked at up close in the context of the specific case, make more sense. I have learned there is more to be said for some of these interventionist laws than I had initially thought.

posted by dios at 12:08 PM PST on January 12 [!]

Thank you, dios


I think this is the key.

I'm with Dios & others: liberal & conservative don't mean what they used to mean and as such should be dropped as descriptive terms of policy just as democrat & republican no longer clearly illustrate a "stance" on any issue.

To me, a formerly-known-as democrat/liberal/leftie/commie/socialist-type individual has done a lot of thinking on both sides of issues and has arrived at a world-view that puts the needs of a many above the needs (or more often: wants) of a few. So, if the trend is that SCOTUS judges (in their capacity to judge fairly and within the restrictions of their post) tend to progress toward this position, well... I'm glad to hear it.
posted by narwhal at 1:13 PM on January 12, 2006


And then, what Skygazer said.
posted by narwhal at 1:17 PM on January 12, 2006


I was thinking of posting this very article. I attended Hanson's lectures last year on the situational character (as opposed to dispositional) - an idea that has strong sympathies with Bem's self-perception theory. The belief that we are largely situational in nature underlies Professor Hanson's article. Whether you think the conservative/liberal labels have any residual meaning, and whether you believe the claim that there has been demonstrable "drift" observed in court appointees, the underlying assumption is worth considering: we are situational beings, often far more influenced by external factors than we generally acknowledge.
posted by dilettanti at 1:42 PM on January 12, 2006


Nice discussion. I especially like MattD's point--the Dems are spending a lot of energy opposing Alito that would be better invested elsewhere. If anything, he strikes me as legally deft and socially mediocre. He's hardly going to trailblaze a new path of strict constructionism, literalism, conservatism, etc. He's a useful tool at best, much more of a Thomas than a Scalia.

Given two nominations, Bush managed to screw the pooch pretty badly. The "swap" so to speak doesn't strike me as a tidal change at all for the SCOTUS. The bungling with Miers was icing on the cake.

It will be interesting to see that 2008-2015 brings in--if a Dem is president, you'll see alot of backtracking on the Republicans' part re: deference to the Executive and Legislative branches and the dangers of "judicial activism," a phrase that is utterly meaningless now. It's just code for judges doing something that doesn't mesh with your ideology.
posted by bardic at 2:01 PM on January 12, 2006


Bardic, thanks for the compliment, but I'm not convinced that Democrats should be spending their energy elsewhere from the Alito nomination, they should just be spending it on the nomination better.

Because there's no net rightward shift likely on the Court, there's no reason to be so evidently emotionally distressed.

They ought to be using the hearings to make the case for a leftward shift, in other words to articulate the modern Democratic judicial philosophy for the voting public's edification. And it's not like this can't be done: Justice Breyer's recent book is a pretty good primer, and Cass Sunstein always has a lot to say on this theme.

Instead, because they're so emotionally distressed, their tactics have become entirely deranged. The personal smears have been truly absurd -- to focus on what he may have wrote / thought in the early 1980s when they have fifteen years of 3rd Circuit votes and writings to explore simply doesn't parse.

The real strategic mistake in this is for the next nomination. Republicans will probably have 51 seats in the Senate convening in January of next year -- if John Paul Stevens dies or forced to step down in 2007, the Democrats are going to have the opportunity to win -- needing only 2 Republican defectors to defeat a nominee. But to do so, they ought to be stocking the bank now, and they're failing badly to do so.
posted by MattD at 2:22 PM on January 12, 2006


Dios Wins! Discussion over. Close the thread.
posted by Balisong at 2:27 PM on January 12, 2006


Extremely interesting article, with much to mull over. I found the following enlightening:
Consider, for instance, the differences between American and Continental courts. In the European “civil law” system, judges often play a much more active role in the conduct of litigation than in “common law” systems such as those of the United States and the United Kingdom, which rely on more adversarial procedures. As Wolfgang Zeidler, the former president of the German Federal Constitutional Court, explains, “While the English [and American] judge is an umpire sitting at the sidelines watching the lawyers fight it out and afterwards declaring one of them the winner, the German judge is the director of an improvised play, the outcome of which is not known to him at first but depends heavily on his mode of directing.” Thus, in the German system, judges may be less likely to be confronted with surprising information and therefore less likely to stray from their ideological moorings.

Similarly, the case and controversy doctrine enshrined in Article III of the U.S. Constitution, which limits federal courts to deciding actual disputes rather than theoretical principles, may make it easier for American judges to have their intuitions challenged than European judges, many of whom may issue opinions without having to deal with hard facts or the vigorous presentation of evidence. As Louis Favoreu explains, in the constitutional courts of Belgium, Portugal, Spain, and France, as well as the European Court of Justice and the European Court of Human Rights, “a concrete dispute involving individual situations” is unnecessary to test the constitutionality of a statute; “an abstract or objective question” is sufficient. As a result, juridical drift appears far more likely in the U.S. federal courts, where, in the words of Justice Felix Frankfurter, the prohibition on advisory opinions insures that “a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests.” The prohibition similarly insulates the federal judiciary from control by other branches of government, which, as in some Continental systems, might frame legal questions to suit their own needs and agendas.
Thanks for the post (and the discussion is pretty good too).
posted by languagehat at 2:36 PM on January 12, 2006


Instead, because they're so emotionally distressed, their tactics have become entirely deranged. The personal smears have been truly absurd -- to focus on what he may have wrote / thought in the early 1980s when they have fifteen years of 3rd Circuit votes and writings to explore simply doesn't parse.

Another example of the Democrats' tactically stupid focus on abortion -- their actions make it look like all they care about w/r/t the Supreme Court is abortion, thus justifying the Right's own obsession with it, and turning what should be a search for a wise, prudent, expert stuent of the law and judge into a one-issue political campaign. And it has the net bonus of confirming the rank and file Republican suspicion that behind all the Democrats' policies lies the very immoral agenda they fear.
posted by eustacescrubb at 3:27 PM on January 12, 2006


And here I was with my overly simplistic answer, "because judges need to see at least two sides of the issue, a trait not typically associated with conservative thought?"
posted by FormlessOne at 4:10 PM on January 12, 2006


“a concrete dispute involving individual situations” is unnecessary to test the constitutionality of a statute; “an abstract or objective question” is sufficient. As a result, juridical drift appears far more likely in the U.S. federal courts

But isn't this precisely why SCOTUS chooses the cases that come before it so carefully? At that stage in the game the issue has reached a Constitutional level of discourse that does have an "abstract or objective" correlation. It should anyhow. The constitution uses some mighty broad brushstrokes. Using SCOTUS for anything less then that is a perversion of it's intent and weakens that document. Personally, I blame religion. The very thing that this country was supposed to be immune to.
posted by Skygazer at 5:47 PM on January 12, 2006


Ahh, but they are. To suggest otherwise is to ignore the facts.

All those party-line decisions are just coincidence, right?

You're a very funny man.
posted by I Love Tacos at 8:03 PM on January 12, 2006


Dios: I read further, your later post was actually an interesting response. It's a shame that most of your posts are brusque partisan incitements.
posted by I Love Tacos at 8:09 PM on January 12, 2006


"when you are actually forced to consider both sides of the case, often you realize there is more to be said on the other side of the case than you might have thought." [ dios ]

IN other words, honest engagement with reality undermines fixed ideological positions.

I'd guess this effect would sway the opinions of judges long before they ascended to such lofty perches as the US Supreme Court bench.

Is there any one answer to the question ? I doubt it. But, if I had more time I'd drag in Sociobiology.
posted by troutfishing at 8:22 PM on January 12, 2006


troutfishing: IN other words, honest engagement with reality undermines fixed ideological positions.

I'd guess this effect would sway the opinions of judges long before they ascended to such lofty perches as the US Supreme Court bench.
Sure. But I think the gravity of finding onesself on th Supreme Court would have a profound catalytic effect for most people who've risen through the jurisprudential hierarchies.

Which is why I'm interested to see how this would correlate with teh kidn of law one practiced during one's careers, and the kinds of cases one hears.

I'd be particularly interested to know whether you observe this effect in people who haven't really had much experience in the court room -- like law professors. Like Scalia or Kennedy.

The sample size is very small, though, so we end up with arguments, and not as much supporting evidence as we'd hope to have.

Someone alluded to the "fundamental attribution error" above, so I followed up on that. It's an interesting idea -- in a typical net.absolutist reading, it would be like saying that you can't attribute anything to a person's specific nature, that instead you have to assume everything they do is teh result of free will. Which would in turn be to ignore the fact that our free choices are conditioned by our nature. So you can see people with somewhat similar experiential backgrounds, like Scalia and ennedy, ending up with pretty different judicial philosophies. Adn where one has appeared to moderaet significantly, the other has (if anything) shifted rightward. (Though I doubt Scalia has canged his views much, if at all.)
posted by lodurr at 5:49 AM on January 13, 2006


Question:

Is "unitary executive" conservative or liberal? Or maybe something else we're not addressing in the current political debates? After all, what was considered conservative or liberal has changed significantly in the past 30 years.
posted by nofundy at 3:19 PM on January 13, 2006


I have yet to find out what 'unitary executive' really means, but my (cursory) research indicates that it's an obscure theoretical issue based around founders' intent that's neither here nor there.

If it is indeed focused on what the founders 'meant' rather than what's in the text (which I'm not certain is the basis of the idea) then it's not, in the abstract, judicially conservative.

As far as whether it's politically conservative or liberal, that just depends on who's using it to justify what.
posted by Firas at 4:35 PM on January 13, 2006


Actually, scratch that, I'm still confused as to what the theory actually claims in a non-politicized basis so I'm hesitant to call it judicially conservative or liberal.
posted by Firas at 4:38 PM on January 13, 2006


But, in the sense that its being used in the political debate (maximizing executive power) it's definitely not a politically conservative stance.
posted by Firas at 4:39 PM on January 13, 2006


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