Saturday, July 30, 2005

The Slow Road to a Conservative Judicial Revolution

Writing for National Journal, Jonathon Rauch offers a detailed analysis of what changes might occur on the Supreme Court if John Roberts is confirmed. Through the course of his excellent piece, Rauch argues that the conservative revolution which many on the right desire, is not likely to come—just as it didn’t come after President Nixon appointed four justices or after Presidents Reagan and Bush five.

There are several reasons for this, but the most fascinating is Rauch’s claim that there really is no such thing as a unifying conservative judicial theory. Quoting University of Chicago Law Professor Cass Sunstein, Rauch writes:

Sunstein, instead, divides judicial philosophies into four types. "Perfectionism" seeks to make the Constitution the best that it can be. This is what many conservatives mean by "judicial activism." "Majoritarianism" holds that the Court should defer to the democratic process unless the Constitution has been plainly violated. "Minimalism" is skeptical of broad theories and sweeping holdings, preferring narrow decisions that proceed one case at a time. (In some of his statements evincing distaste for theory-driven judging, Roberts sounds like a minimalist.) What Sunstein calls "fundamentalism," and what most other people call "originalism," seeks to interpret law in light of its authors' intentions.

When Bush and other conservatives talk about judicial philosophy, they speak with one voice in opposing perfectionism, but they embrace all of the other three philosophies as if they were interchangeable. In reality, majoritarianism, minimalism, and originalism are often in tension -- and are sometimes incompatible.

I think that is right on the mark. The reason the conservative revolution on the court hasn’t happened isn’t because some of the justices haven’t been “pure enough” as some on the right would have us believe, but because different kinds of conservatives have been appointed. And different kinds of conservatives are going to have different interpretations.

It seems to me that all conservatives value some form of restraint. But, for justices, the method of restraint varies from being restrained by precedent to being restrained by the wishes of elected officials to being restrained by the original intent of the writers of the Constitution. If precedent or the wishes of elected officials are in conflict with the intent of the writers of the Constitution, then there is going to be conflict amongst conservatives.

Additionally, if restraint truly is the defining characteristic of conservativism, then one must wonder exactly how you can have a restrained revolution? You can’t, really. And that, I think, is another reason why, despite conservative dominance, the Court has not become as radically transformative in a rightward way as say the Warren court was in a leftward way. The principle of restraint is just not conducive to revolution.

True liberals have been a minority on the Court for a long time now, and yet the Court continues to hand down decisions that certain groups of conservatives deplore. But instead of blaming moderate conservative justices for being too easily seduced by liberalism, perhaps conservatives should consider the contradictions in their own ideology.


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