Conservative Justices

Writing in the Atlantic (and picked up by MSNBC), Michael Knisley asks what makes a conservative justice? Knisley is no conservative so what he really lists is a series of conundrums meant to support his conclusion:

Conservatives believe that they have a coherent judicial philosophy and liberals either don't have one or ignore the one they have in favor of simply using judges to impose their political philosophy on an unwilling nation. They are giving themselves too much credit. They don't have one either. Words like "restraint" and "originalism" don't add up to a coherent judicial philosophy, let alone one that conservatives are willing to live by themselves.

This is neither fair not true and there are problems in his analysis.

It can mean a strong belief in the principle of stare decisis, or respect for precedent. Problem: Does that mean that a conservative judge must rule in favor of upholding all of the liberal rulings of the 1960s and 1970s? Even though many of them overturned earlier precedents?

Conservative can mean a narrow view of the Constitution, especially the Bill of Rights: Justices appointed for life should be modest in their ambitions. They should stick to the "original meaning" of the document, avoid "activism," and be slow to overturn the workings of the democratic branches.

Problem: Many specific items on the conservative agenda violate this principle. Conservatives have been saying that judges or justices ought to overturn health care reform. They cheered when the court decimated the campaign spending laws. They want courts to outlaw affirmative action. They want to use the Fifth Amendment's ban on government taking "property" without due process of law, in order to forbid a wide variety of government activities.

Conservative can mean simply judges who use their power to impose a conservative political agenda. Problem: This would be a gross violation of the other two alleged principles

First, I will agree with Knisley on his last point (except for his use of the word "alleged"). Justices should not base their decisions on their own political leanings - something that liberal justices often do.

So, there is the first point of what makes a conservative justice - one who rules according to the law, not his own personal beliefs.

Knisley throws out his first two points in reverse order and completely ignores the concept of prioritization. The Constitution and the Bill of Rights should take priority in any decision. The system was designed to work this way. The Constitution is difficult to amend. This makes sure that a super-majority agrees with any changes. It also limits Congress's role in amendments. This prevents sweeping changes from being forced on an unwilling population. When a justice stretches the Constitution or discovers a new meaning that the framers must have intended but neglected to actually write down then the whole amendment process is broken. Liberals loved doing this, especially during the 1960s, but it has caused long-term damages. Abortion was on its way to being accepted nation-wide. If the political process had been allowed to continue, it would probably be legal and accepted in most if not all states. The Supreme Court inserted itself into this process, "discovering" a new right. Not only did this energize the opposition, but it also meant that every nominee since has been judged more for his stance on abortion than anything else.

So, the Constitution and the Bill of Rights must take priority over any other considerations. If a justice doesn't like the way that the Constitution reads then he should urge an amendment.

Precedent is important, but only if it was constitutional in the first place. If a ruling was wrong then it should not be upheld. The Second Amendment is quite clear about guns. If there is any question, the Founders left other writings that clarify their position.

Original intent is also important in considering new, novel applications of existing law. Clearly, Congress did not intend for the EPA to mandate fuel economy. If they had then they would not have passed the CAFE standards separately. If they do want the EPA to control fuel standards then, being Congress, they can amend the law to say so. The same is true for the EPA and CO2 in general. A conservative justice would tell the EPA to go to Congress if they want to expand their authority. A liberal justice ignores this, sees the good that a broader interpretation can cause, and allows the EPA to expand its authority.

The complexities that confound Knisley just are not there, but he wants us to think that they are. Why? Because a liberal activist and a liberal court can effect societal change much faster than the legislature. In the 1970s, I heard a high-ranking member of the NOW (National Organization of Women) explain why the ERA (Equal Rights Amendment) was so important to their cause. She explained that it was much easier to use the courts than the legislatures to advance their agenda.

The courts should not exist as an alternative to the legislature. That is the real difference between liberal and conservative justices.