Justice Stevens has been known to classify himself as a “judicial conservative,” which has puzzled many court followers. Justice Stevens is often described as the leader of the Court’s liberal wing: He consistently tries to advance politically liberal outcomes, generally defending liberal precedents and often working to overturn conservative ones. Given that, why does he see himself as a “judicial conservative”? Back in early 2007, I offered a possible explanation:
I wonder . . . whether Stevens’ self-perception is just a reflection of the what the phrase “judicial conservative” used to mean. Oversimplifying things a lot, in the 1960s and 1970s judicial liberals were the folks who favored the courts bringing about dramatic changes to the foundations of American law. In contrast, judicial conservatives were the folks who favored resisting those changes. The Justices who embraced some dramatic changes but rejected others were the moderate conservatives. I don’t know whether Justice Stevens has this history in mind when he labels himself a “moderate conservative.” As far as I know, he was not asked to define what he meant by the label. But if he has this somewat outdated framework in mind, then it doesn’t seem particularly inaccurate to me.
A recent interview of Justice Stevens by Joan Biskupic adds some evidence to this hypothesis. Biskupic reports:
Stevens says he regards himself as a conservative of sorts — even today, when nearly every justice is to the ideological right of him. “You can be a conservative by deciding cases narrowly and paying attention to (precedent),” he says, then adds, “If you look at political outcomes” to label a justice, “it’s a very different thing.”
This is only a brief comment, and we don’t know the precise context of it. But taking it as face value, it seems to suggest that a Justice could consistently vote to try to make the law more aligned with the views of political liberals, but as long as he did so mostly in relatively small steps and by “paying attention” to precedent, that Justice would still be a “judicial conservative” in the sense used by Justice Stevens. I don’t think that’s a particularly inaccurate label given how such terms were used in the 1960s and 1970s, even if it is no longer how the terms are normally used.
theobromophile says:
It seems like “incrementalist” might be a better term for this.
Back in the 1950s, deciding cases based on precedent would have resulted in a much more conservative legal system than we have now. Once the Warren Court came through, though, their judicially liberal cases became precedent, so sticking with precedent may yield rather liberal results.
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October 19, 2009, 12:41 pmFlash Gordon says:
Might it also be possible that Justice Stevens is simply doing what most liberals do, that is, deny that they are liberals.
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October 19, 2009, 12:55 pmJohnF says:
Typical for a Supreme Court justice to readily make findings of fact without any basis in the record.
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October 19, 2009, 1:06 pmMark Field says:
This will sound odd, I suppose, but I think of myself in the same way. I’m pretty cautious in the legal arguments I make: stating cases precisely and narrowly, relying heavily on precedent, rarely trying to make new law. That’s methodologically conservative regardless of one’s eventual goal.
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October 19, 2009, 1:12 pmAllan says:
Yes.
Today’s conservatives are radicals. Conservative in ideology, but radical in their efforts to effect their ideology.
Take, for example, the Tea Party, which is obstensibly a conservative group. See also, from the 1980s, the Reagan Revolution.
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October 19, 2009, 1:19 pmPeter says:
I guess under that view, justices who adhered to Plessy v. Ferguson during the fifty years it was good law were judicial conservatives. I fail to see what is conservative about following precedents that are themselves wrong. I suppose Lochner would still be good law if the court always embraced that approach.
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October 19, 2009, 1:20 pmRandy says:
Expansion of individual rights against the government *should* be considered conservatives AND liberal. But few people would agree.
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October 19, 2009, 1:32 pmegd says:
Agreed. Which is why it is so disheartening to hear a pro-government regressive like Stevens refer to himself as a “Judicial Conservative.”
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October 19, 2009, 2:01 pmfinman says:
By that definition, I guess we can consider Thomas a judicial liberal?
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October 19, 2009, 2:19 pmtroll_dc2 says:
I read Justice Stevens’ opinions when he served on the Seventh Circuit, and I can assure you that he fit well within any assumed meaning of conservative in those days. The fact that he is considered a liberal these days is due to the shift in the way other people think now and the focus on the bottom-line outcome.
Here is an example of his then-jurisprudence, a dissent in Sprogis v. United Air Lines, 444 F.2d 1994 (1971).
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October 19, 2009, 2:23 pmtroll_dc2 says:
I made a mistake. The cite should be 444 F.2d 1194. I cannot figure out how to use the edit function.
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October 19, 2009, 2:24 pmHarlan's ghost says:
The question for every minimalist/incrementalist is this: what, if any, greater steps would you make to correct a series of radical jumps that you had opposed when they happened? If Justice Harlan, who dissented from many Warren-era leaps, had been joined by four clones of himself soon after, what would they do?
The obvious problem, of course, is that an overly “conservative” approach to that question leads to the classic ratcheting, in which even radical leaps get locked in within a year. On the other hand, reversing just because you now have the votes, even if it’s been 20 years, and so on, is problematic, so you get into multi-factor tests.
Only after answering that question, from a Harlan-ist perspective, can we categorize Roberts or anyone as more conservative than Harlan himself. That is so because I don’t think that any of Roberts’ or Scalia’s views would actually roll back beyond what Harlan objected to, so it’s all a matter of how much to let go.
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October 19, 2009, 2:34 pmJay says:
“I fail to see what is conservative about following precedents that are themselves wrong.”
Really? It strikes me that the essence of conservatism is a certain respect for tradition simply because it is tradition, even if, starting afresh, one might choose a somewhat different course. Respecting precedent “only when it’s right” is not really giving any respect to precedent at all, but just using it as a makeweight whenever it happens to fit the results brought in from whatever other value system you’re operating under.
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October 19, 2009, 2:36 pmtroll_dc2 says:
Harlan had a one-year rule. I recall a situation in which he dissented from a decision recognizing a certain right and then, more than a year later, dissented from a ruling refusing to make that earlier decision retroactive.
I have no idea what he thought was “liberal” or “conservative.” That is not how he approached things. He looked at precedent as guides to the next case, and, when he overruled something, he wrote as thorough an opinion as could be imagined. I ALWAYS read his opinions first because I knew that he would tell the truth.
I had a law professor who clerked for him. The professor was as liberal as you could imagine, and he utterly revered Harlan.
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October 19, 2009, 2:44 pmdrunkdriver says:
A popular theme in the media the last few years has been to attempt to re-define “judicial conservative” so as to call Souter and Stevens “conservatives,” and make what Scalia/Roberts et al do seem unprincipled. I’ve seen a number of columns urging Roberts not to dismantle some precedent or other that the author likes. Because, you know, if he did that he’d not be a real “conservative.”
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October 19, 2009, 2:52 pmMike says:
The political conservatives have definitely brain washed the American people to believe that “judicial conservatism” has something to do with “following the law.” Liberals are simply capitalizing on the hard work.
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October 19, 2009, 2:59 pmB.D. says:
Maybe he’s referring to the federalism-based jurisprudence of the Rehnquist and Roberts Courts, which many liberals consider to be an example of judicial activism on the right. The opposite of activism is restraint . . . or conservatism in the dictionary sense.
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October 19, 2009, 3:01 pmAllan Walstad says:
From my Webster’s:
Conservative 2. tending to preserve established traditions or institutions and to resist or oppose any changes in these.
That’s what I think of as conservatism. It’s not a principled adherence to any actual, stable philosophy. It’s just “paying attention to precedent.”
Question for a judicial “conservative:” What should count as the more important precedent? Some old court decision that turns the welfare or commerce clause into a grant of virtually unlimited federal power (and thereby turns the Constitution on its head)? Or the Constitution itself and the fairly clear intention underlying it, to strictly limit federal powers and maximize liberty?
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October 19, 2009, 3:01 pmSuperSkeptic says:
•On new Justice Sonia Sotomayor, who just began her first term: “I know she’s conscientious, capable, just as solid as can be.” The president “really did a good job on that one.”
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October 19, 2009, 3:05 pmPeter says:
Jay,
Allowing imperfect but relatively harmless precedents to stand in some fields of the common law may be appropriate, especially when everyone is aware of the rule and abides by it. If a con law precedent is wrong because it conflicts with the text of the Constitution or its original meaning AND it results in something harmful, ie making social policy at the national level (abortion/sodomy) and creating needless divisions, then to suggest it is wrong and to reject it is not merely to inject results from one’s own ‘value system.’ It is to return everyone to the agreement as it was originally understood and to eliminate a policy that involves the judic in pol q’s and hurts the judiciary. Some precedents are wrong and harmless; some are wrong and harmful.
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October 19, 2009, 3:15 pmtroll_dc2 says:
@ Allan Walstad:
So would you be upset if Hans v. Louisiana, 134 U.S. 1 (1890), were overruled? That decision expanded the Eleventh Amendment, which forbids a citizen of one state to sue another state in federal court, to bar a citizen from suing his own state in federal court. But when the Court realized that this would prevent corporations from suing a state to keep them from being regulated, it invented the fiction of ultra vires in Ex parte Young, 209 U.S. 123 (1908), so that the corporations could get injunctions against the state (nominally the state official) in federal court. Intellectual dishonsty, perhaps?
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October 19, 2009, 3:21 pmjpe says:
He’d be considered a radical in this scheme. We can coherently pair conservative/liberal and conservative/radical. Thomas certainly isn’t a liberal in the first pairing, but he could be described as radical in the second (versus Burkean conservativism-as-incrementalism)
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October 19, 2009, 3:24 pmtroll_dc2 says:
I wish that we could get away from terms like “liberal” and “conservative.” They are little more than newspaper-friendly terms. It is never clear whether they are referring to a judicial approach or to a judicial outcome.
If the first sense is intended, I would prefer “incrementalism” and a term for not worrying too much about precedent. If the second, I am not sure what would fit. “Regulatory” or “pro-government” might work for one side, and “anti-regulatory” or “anti-government” might work for the other.
But how do you describe yourself if you support both the creation of the proposed Consumer Finance Protection Agency and the repeal of the Defense of Marriage Act? And what would you label a judge who clearly dislikes the CFPA (assuming that it is created) but upholds the law creating it against a constitutional challenge?
It is stuff like this that makes me try to avoid all labels. They mislead because their definitions are subject to individual modification.
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October 19, 2009, 3:57 pmOren says:
This boils down to nothing more than “precedents should only be respected when I concur in the result”.
The whole argument over whether we should respect precedent is whether a Justice ought to say to herself “I think XXX is wrong and harmful but the Court has spoken (I dissented and made my best case) and the issue is closed for now. So long as I am unable to get the votes to overturn XXX, it is my job to respect it as precedent and apply it faithfully to the cases before us.”
I happen to believe this is the right approach — one that evinces the proper level of respect for one’s fellow jurists while still maintaining one’s intellectual consistency. There is no shame in saying “I believe X but the reasoned judgment of my colleagues rejected that notion and, as it happens, I am not the final arbiter of Truth in the galaxy.”
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October 19, 2009, 4:03 pmNYTwin81 says:
In several politically charged cases, though, Justice Stevens didn’t pay attention to precedent when it reached a result that he disliked.
See Roper v. Simmons, 543 U.S. 551 (2005), which overruled Stanford v. Kentucky, 492 U.S. 361 (1989), and Lawrence v. Texas, 539 U.S. 558 (2003), which overruled Bowers v. Hardwick, 478 U.S. 186 (1986).
As other commenters have pointed out, if you only respect precedent when you agree with it, you’re not really respecting precedent at all.
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October 19, 2009, 4:11 pmtroll_dc2 says:
NYTwin81, you have a good point. But if, as expected, the Court overrules Austin v. Michigan shortly, would you consider any members of the five-justice majority to have been acting conservatively?
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October 19, 2009, 4:18 pmsputnik says:
by today standards Stolypin would have been a flaming liberal.
Amazing how far right Murdoch boys were able to swing the core of republican party
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October 19, 2009, 4:22 pmFederal Farmer says:
In my experience:
a conservative sees the world as it is and wants to hold on to those things that are good
a liberal sees the world as it should be and wants to change things to acheive that goal
I like the tension between the two, as it best serves society.
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October 19, 2009, 4:34 pmLibertarian1 says:
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October 19, 2009, 4:34 pmPeter says:
Oren:
You are mischaracterizing a position you dont like in order to make it easier to knock it down.
What I am saying is that precedent should only be respected when it is (1) correct, or (2) incorrect but harmless. Swift v. Tyson was good law for a century, but it was wrong and it was destructive. It conflicted with the terms of the 1789 Jud. Act and corps used it to prevent injured employees from recovering for their injuries. It was appropriate for the SC to overturn it. When it did so, it was not exercising a values-based judgment; it was discarding a body of caselaw that conflicted with the statute it was supposedly designed to carry out. You are attacking people’s motives (judge’s motives) instead of accepting the fact that applying the law is an act that involves reason. It is not merely an act of raw power driven by emotion and prejudice.
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October 19, 2009, 4:34 pmtroll_dc2 says:
@ Peter:
Care to define these terms? Or do we just know it when we see it?
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October 19, 2009, 4:43 pmOren says:
Absolutely agree — when the precedent is no longer persuasive, the Supreme Court should overturn it.
My point is not about what the Court should do with precedent that it finds unpersuasive, but what an individual Justice should do about such precedent. If a Justice lacked 5 votes to overturn Swift, despite his reservations about it, he should give it full force of law.
That is, if you’ve dissented and lost, then its time to move on — unless you actually have the votes to overturn. Otherwise, it smacks of disrespect both for your fellow jurists and for the institution.
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October 19, 2009, 4:45 pmPeter says:
Can I define by example? Griswold is arguably wrong but harmless. Wrong because no one viewed the 14th as bestowing a right to birth control in 1867–68; harmless because no state today would ban birth control, even if it could (I hope). Of course some would say interp a statute or const provision or contract based on original intent is a values judgment; but others might say it would mean the end of contracts if judges did anything other than interpret them according to the intent of the parties. Not so much a values judgment, as preserving a vehicle that makes capitalism possible.
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October 19, 2009, 4:49 pmPubliusFL says:
If each justice follows the “it’s time to move on” rule, how could 5 votes to overturn ever come about?
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October 19, 2009, 4:52 pmJoe says:
“Wrong because no one viewed the 14th as bestowing a right to birth control in 1867–68″
This is false.
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October 19, 2009, 4:58 pmtroll_dc2 says:
But can it not be said (assuming that your statement is totally true) that the decision is harmless in today’s world precisely because it caused a shift in the way that society regarded birth control? In other words, an arguably wrong decision managed to change the thinking on the subject. So harmlessness as you use the concept is ahistorical in meaning.
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October 19, 2009, 4:59 pmtroll_dc2 says:
I cannot think of the name of the case, but Justice Ginsburg, in concurring in a decision in which the Eleventh Amendment was held to bar a claim, said that the decision was correct in light of recent precedent but that she would be open to a call to reexamine Hans v. Louisiana if one were raised.
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October 19, 2009, 5:02 pmJoe says:
“Conservative” is a word that has different meanings.
I think Mark Field, for instance, has a sense of how this can be as expressed by someone who doesn’t come off as ideologically conservative.
Conservatives do change over time. Lawrence is an interesting case since arguably Bowers is the problem, since it arguably didn’t fit into other cases around it.
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October 19, 2009, 5:08 pmDisintelligentsia says:
Much as the hypothetical that Peter posited re Griswold and your valid criticism that Griswold likely led to the societal shift regarding birth control, would Peter argue that Miller’s result was harmless — machine guns are now outlawed under the National Firearms Act in 1934. If Miller invalidated the NFA machine guns might be deemed normative for gun ownership now. Indeed, prior to the NFA, you could pick one out of the Sears catalog and get it by mail order. They also weren’t inordinately expensive. Would Peter view a restoration of the prior status of machine guns to be a harmful change?
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October 19, 2009, 5:33 pmAllan Walstad says:
troll_dc2: Simple & honest reply is, I don’t know without further study. I don’t presume a whole lot of expertise regarding the fineness of the king’s clothes, until it’s completely obvious that he’s walking around in his undies.
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October 19, 2009, 5:49 pmSplunge says:
a conservative sees the world as it is and wants to hold on to those things that are good a liberal sees the world as it should be and wants to change things to acheive that goal
I like your definition in general, but I think you leave a very important axis out of this assessment: means. See, in general when we talk about “liberal” and “conservative” and we get all excited it’s about politics, right? We don’t fuss about whether someone is “conservative” in his lawyering or carpentry.
But in politics, the difficulties are not really so much in the goals as in the methods by which we should try to achieve those goals. If you do a poll and ask people whether the United States should be a nation in which people are judged by the content of their character rather than the color of their skins, or whether no one should go hungry or work under inhuman conditions for miserable wages, or whether women, minorities, children, et cetera, should be able to live without fear and achieve the most their capabilities let them — I’m going to go out on a limb here and suggest you’ll get near 100% agreement on those goals, from Republicans and Democrats and full-on Communists and naked anarchists. No one is really going to disagree on the goals. You aren’t going to find a big chunk of people saying oh, no, golly, even if it were perfectly possible for everyone to get a free lunch (free top-quality health care, living wage, whatever), I don’t think it should be done, because I am conservative and don’t want to change things, even bad things.
No, the problem is when it comes to methods and means. Political liberals and conservatives both want to change things for the better — but they disagree substantially, even fundamentally, on the methods for doing so. Broadly speaking, I suppose I would argue that the liberal sees the great power for good of a mobilized and organized majority, and wishes to deploy that power — through coercive government — to achieve the desired outcome efficiently. He accepts that even in the best case the power of the majority may occasionally be misapplied and cruel, but the good of the many outweighs the good of the few, and, besides, as an intellectual he confidently expects himself to be among the many, every time.
The conservative, by contrast, sees the great power for evil of a mobilized and organized majority, and fears deploying coercive government for any but the direst social needs. He much prefers the voluntary organization of the citizenry, e.g. through business, private charity, et cetera, because these sources of organized power, he believes, being dependent on voluntary enlistment, are less easily abusive of minorities. The conservative fears that even in the best case the power of the majority is likely to be abused against minorities, and he in general subscribes to the Nuremberg thesis that not even arbitrary amounts of good to the majority render acceptable certain offenses against minorities, or even individuals. Besides, he is himself far less confident of being in the majority on each occasion when it’s important to be.
Are both attitudes useful? At one time, or perhaps in general, I would say they would be. In a primitive situation in which the power of the organized majority is almost entirely unused, so that for example essential collective action problems — public hygiene, public safety — are almost entirely unsolved, then indeed one needs the activist liberal viewpoint.
But in the 21st century, when human beings have become extraordinarily efficiently organized, and there is almost no aspect of behaviour not potentially quite effectively influenced by majority power, I would say I think the “liberal” viewpoint almost entirely dysfunctional and destructive, merely the route by which vicious social parasites acquire sustenance. It is, perhaps, a mental skill-set which, like valor and competence in personal combat, or a superior ability in animal handling, which has outlived its usefulness.
In short, the proposition that the ability of the majority to tell individuals what to do is insufficiently strong strikes me as ludicrous, whereas the proposition that the liberty of the individual to resist the will of the majority needs strengthening seems almost self-evidently obvious.
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October 19, 2009, 5:49 pmPeter says:
Joe,
Please provide us with evidence that someone in 1867–68 saw the 14th amendment as bestowing a rt to birth control. And when you are done with that, please provide evidence that the states knew they were giving up the right to ban birth control when they ratified the amendment.
This I have to see.
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October 19, 2009, 5:52 pmSuperSkeptic says:
Since Allan is not around (but he usually says what I think I might say), please allow me to interject.
I would not be upset if Hans was overruled. Was not Chisholm rightly decided based on the text of the 11th Am.? Look at the mess it has created. Congress can now abrogate state sovereignty sua sponte? That cannot be the correct result, can it?
Would you be upset if Hans was overruled? Why or why not?
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October 19, 2009, 5:59 pmPeter says:
Disintelligentia:
Dont understand the question.
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October 19, 2009, 6:00 pmSuperSkeptic says:
(sorry Allan, didn’t see you were actually back. Keep it up, I generally appreciate your comments).
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October 19, 2009, 6:12 pmDNJ says:
Oren,
I tend to agree with you about what a Justice should do when he doesn’t have a majority to overrule a precedent he disagrees with. But isn’t the real test of a Justice’s commitment to precedent what he does when there are four votes to overrule and he has to decide whether to follow the precedent he disagrees with or overrule it.
FWIW, I think that in these circumstances sometimes the precedent should be followed and sometimes it shouldn’t. I don’t think one can make general rules. Precedent is an important feature of the legal system, but a too-rigid adherance to it can lead to incoherance and stifle development of the law to meet the needs of a changing society.
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October 19, 2009, 6:27 pmOren says:
The Justices are, in fact, allowed to communicate (this isn’t one of those bizarre riddles). They can simply ask.
I’m sure everyone on the Court knows that Thomas would overturn Tucker v. Des Moines. I’m sure that he knows that not a single other Justice would vote with him. That’s what I mean about “time to move on” — an acknowledgment that despite his disagreement, Tucker is good law and will continue to be good law and that he ought to faithfully apply it to current cases until such time as it ceases to be good law.
Why is that relevant to whether the 14A bestows a right to birth control in 1965?
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October 19, 2009, 6:30 pmtroll_dc2 says:
@ SuperSkeptic:
I would be delighted if Hans were overruled. The Eleventh Amendment, both in intent and in words, was adopted to overturn Chisholm v. Georgia by preventing out-of-state citizens from suing a state in federal court. In other words, it eliminated the federal courts’ diversity jurisdiction with regard to suits against a state. The Amendment said nothing about suits by a state’s own citizens. But the Court employed rhetorical reasoning, of which the following is an example:
It has been suggested that the Court ruled as it did because the underlying dispute concerned bonds issued by the Reconstruction-era government that the Louisiana government of 1890 did not want to honor and that the Court was sympathetic to Southern views. In any event, it did not consider the situation that would occur when states started to regulate corporations (because the Commerce Clause as then interpreted did not allow the federal government to do so). Because of ideology (liberty of contract and all that), that was intolerable. To get around this problem, the Court invented the idea that a state official who violated the Constitution (due process clause) was acting ultra vires such that a lawsuit against him was not really against the state.
The Rehnquist Court paid a great deal of attention to the Eleventh Amendment and mostly used it to block lawsuits against states (unless a law could be said to fit within Section 5 of the Fourteenth Amendment). This culminated in the absurd decision of Alden v. Maine, 527 U.S. 706 (1999), which held that the Eleventh Amendment was just a subset of a greater doctrine of state sovereign immunity and that state employees thus, without the state’s consent, could not sue the state in state court under a federal Commerce Clause statute (the FLSA).
I could go on and on and on, but I desist. Yes, I would be delighted if Hans were overruled.
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October 19, 2009, 6:35 pmSuperSkeptic says:
Thank you for the exposition Troll_dc2. I concur. I guess we are no judicial conservatives, are we?
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October 19, 2009, 6:56 pmDNJ says:
On further reflection, I think that following a precedent you dislike if there are not five votes to overrule it is a good general rule, but one with exceptions. For instance, I tend to think that Justices Brennan and Marshall were justified in maintaining their opposition to the death penalty despite Gregg v. Georgia. I tend to think it would have been entirely proper and indeed admirable for Justices to dissent if the Court had reaffirmed Plessy v. Fergusson. Sometimes a dissenting judgment can be an appeal to the future and the thing that keeps a position or idea alive, perhaps to be adopted by a majority in the future. This is how I see that hypothetical dissent from the reaffirmation of Plessy v. Fergusson and the many anti-death penalty dissents of Justices Brennan and Marshall.
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October 19, 2009, 6:56 pmJ. Aldridge says:
Stevens is a “judicial conservative” in heart but has no guts to be a practicing one.
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October 19, 2009, 7:01 pmtroll_dc2 says:
@ J. Aldridge:
Is the “conservative” position always the right one? If your answer is yes, how do you know?
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October 19, 2009, 7:15 pmtroll_dc2 says:
Prof. Kerr often responds to comments in his threads. Before this one closes for comment, I hope that he does so, as I think that we have given him a fair amount to chew over.
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October 19, 2009, 7:18 pmGuest14 says:
A world governed by originalists sounds pretty awful, frankly. I’m happy that at least occassionally those in power recognize that unyielding adherence to an ideology of dubious worth only interferes with wise governance.
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October 19, 2009, 7:21 pmJ. Aldridge says:
Yes, because constitutions and laws are not written to mean whatever a jurist wants them to mean like liberals prefer.
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October 19, 2009, 7:32 pmtarheel says:
troll_dc2:
Preach brother. Alden v. ME and the whole of 11th Amendment jurisprudence is an utter travesty and gives the lie to any so-called textualist or strict constructionist Justice who signed on to it.
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October 19, 2009, 7:42 pmklp85 says:
J. Aldridge,
IIRC, you have criticized the majority opinion in Heller for its view of the scope of the RKBA in the 2nd Amendment. How would that fit into this model?
If I have mischaracterized your opinion of the case, or misunderstood what you mean by “conservative” here (if, e.g., you believe that the “liberals” were “conservative” in Heller), my apologies.
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October 19, 2009, 7:44 pmJ. Aldridge says:
Stevens was being conservative in Heller for the simple reason he was looking at original meaning while Scalia & Co. were interested in abusing very selective quotes while hiding their proper context to insinuate a different meaning.
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October 19, 2009, 7:53 pmtherut says:
Yea and Michael Moore is a hard-nosed Capitalist and his politics is from his Christianity. As they say, I have a bridge to see yah!!!!!!!
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October 19, 2009, 7:59 pmAllan Walstad says:
Dear Lord...
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October 19, 2009, 8:21 pmJ. Aldridge says:
Show me one quote from Scalia that was not used out of context!
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October 19, 2009, 8:53 pmAlanDownunder says:
I don’t understand the puzzlement. Recent SC history is all about judicial radicalism in the service of political conservatism.
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October 19, 2009, 11:12 pmAllan Walstad says:
J. Aldridge: It’s not about quotes from Scalia. It’s about the original meaning and clear intent behind 2A. We’ve been over, under, around and through the issue during the past 1.5 years or more. By googling “arms volokh walstad” or “arms volokh doc w” (my previous pen name) you can probably find everything I’ve written at VC on it during that time. I’m not going through it again at this moment. That four justices would try to turn 2A into a dead letter is truly disgusting. The notion that Stevens was holding to the original meaning in that effort is absurd.
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October 19, 2009, 11:21 pmChrisTS says:
So, I finally have to pose a question with respect to the OP.
I always thought ‘judicial conservative’ meant a judge/justice who is careful about dramatic change in the law and respectful of precedent.
But, Orin suggests this was only true in the ‘60s and ‘70s. I take the implication to be that ‘judicial conservative’ now means ‘politically conservative judge/justice.’
Is this correct (I mean in legal circles, not talk radio)?
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October 19, 2009, 11:25 pmJ. Aldridge says:
The 2A has always been a dead letter when it comes to a state and its own citizens! Has absolutely nothing to do with state citizens and firearms. Its all about a state arming its citizens as part of the military power of the state. It forbids congress from taking away this military power.
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October 20, 2009, 12:24 amPeter says:
Oren,
If the 14th was not understood at the time it was ratified as barring the states from banning birth control, then interpreting the amendment for that purpose defeats the purpose of writing the amendment in the first place. Abolish Congress and the legislatures and make the Sup Ct the sole legislative body in the US. Under the law in every state contracts are interpd according to the intent of the parties, and laws are interpd according to intent of drafters. Policy reasons may exist that require taking a looser approach with constitutions, but those policy reasons, if they exist, make the written law dead law and replace the democratic process with the intent of judges. Why bother having amendments ratified and argue over their meaning at the time they are ratified (or rejected) if their interpretation is not going to be governed by the understanding of them possessed by those who ratified it?
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October 20, 2009, 6:00 amjrose says:
Peter,
What was the meaning of the 14th at the time it was ratified with regards to prohibiting states from abridging individual rights?
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October 20, 2009, 7:41 amjrose says:
“Conservative”
It could mean narrow decisions that respect precedent.
It could mean deference to the elected branches.
It could mean fidelity to original meaning or intent.
Or better yet, maybe a conservative applies principles (some consistent combination of the above or other methods) such that the results do not just happen to correspond with his/her policy preferences?
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October 20, 2009, 8:15 amAllan Walstad says:
!00% nonsense. Sounds like you overdosed on propaganda from Saul Cornell.
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October 20, 2009, 9:18 amTuesday round-up | SCOTUSblog says:
[...] reading Joan Biskupic’s USA Today piece on Justice Stevens, Orin Kerr at the Volokh Conspiracy attempts to reconcile the justice’s somewhat puzzling description of himself as a judicial conservative with his [...]
PubliusFL says:
I guess what I’m confused about is what “he ought to faithfully apply it to current cases” means in practice, considering that Supreme Court justices don’t do much application on their own. Do you mean, for example, that Justice Thomas should never write dissents based on his disagreement with Tucker v. Des Moines?
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October 20, 2009, 9:46 amtroll_dc2 says:
Felix Frankfurter?
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October 20, 2009, 9:48 amegd says:
I hate to pick nits, but it sounds like you’re saying, “Courts should only overturn precedent when they have enough votes to do so.” Isn’t this self-evident?
If Thomas would overturn Tucker v. Des Moines (Tinker maybe?), then in cases applying First Amendment precedent (say the right to religious beliefs), should he dissent/concur or join with the majority of the Court? If he dissents or concurs based on the idea that Tinker v. Des Moines should be overturned, but disagrees or agrees with the result otherwise, where is the harm?
Either you’re making a very obvious point or a very fine one that isn’t readily apparent. Could you clarify?
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October 20, 2009, 9:48 amtroll_dc2 says:
If a judge’s overarching philosophy, rather than the precise facts and arguments of a case, determine his ruling, then he is an ideologue, regardless of whether you slap him with the label of “liberal” or “conservative.” But judges can be open-minded on some issues and fiercely committed on others. A fair appraiser would note this. (At times, I observe, the real ideologue is the appraiser and not the judge.)
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October 20, 2009, 10:03 amMark Field says:
Frankfurter strongly believed in deference to legislatures. That was jrose’s second definition.
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October 20, 2009, 10:09 amPeter says:
JRose,
My recollection is that the 14th amendment was understood as providing a constitutional basis for the Civil Rights Act of 1866 at the time it was ratified. EP clause was understood as allowing Congress to punish persons participating in lynchings when sts would not; p and i clause was understood as barring sts from discriminating against their black citizens on the basis of race (in the rts they granted), and DP clause was understood as a guarantee of procedural rts, ie jury trials, confronting hostile witnesses, etc.
If you go to proquest and do a search of newspapers during the 1866–68 period for “Bill of Rights” and “ratification,” or “amendment” you find nothing. Or almost nothing. On the other hand, you will find scores of speakers claiming the second clause of the amendment constitutionalized the CR Act of 66.
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October 20, 2009, 2:10 pmJoe says:
“My recollection is that the 14th amendment was understood as providing a constitutional basis for the Civil Rights Act of 1866 at the time it was ratified.”
The wording of the 14A is rather broad if this is all that it did. I have read various accounts, including those from one or more members of this very blog, of the ratification process, and more than that was at issue. Many did argue “privilege or immunities” of national citizenship included those found in the BOR.
Some — included when talking just about the 13A — spoke about how freedom brings forth various rights over family life, including control over how many children you have. Many people at the time thought such intimate matters none of the state’s business and would be shocked if the state got involved.
I would think, yes, some would be shocked it let’s say the rhythm method was banned. Or, banning physicians to discuss the matter to a woman who might have a health problem.
“Birth control” means any number of things. So, yes, states would have at the time clearly understood they had some power to regulate in that area.
Anyway, “no one” was the standard. And, yes, some at the time promoted the right to family planning. The “free love” movement etc. This is in part why Mr. Comstock and others had to push for laws against sending such information over the mails. And, why some were upset, and thought in part their 14A rights were being violated.
Some even spoke in “right to privacy” language. Even the state in Griswold argued that some birth control methods were still possible.
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October 20, 2009, 3:03 pmPeter says:
30 million people lived in this country in the 1860’s. If one searches high and low enough, one can find support for the idea that the 14th meant everything and nothing athe time it was ratified.
The fact remains that there is a broad understanding of the meaning of the 14th amendment’s terms that can be gleaned from the newspapers of the period. And that broad understanding is that it constitutionalized the CR Act of 66. While two lawmakers claimed the p and i clause incorpd the bill of rts at the time Congress debated the measure, these claims were lost in the deluge of speakers claiming that it did much less than that. Speaker after speaker across the country, as indicated in the newspapers of the period, claimed that the amendment merely constitutionalized the CR Act of 66 (no discr by states in alloting priveleges). And despite the law review articles cited in the brief in heller, claims that the bill of rts was incorpd were mere drops in the bucket compared to the alternative view. The claim that somehow everyone understood that the p and i clause incorpd the bill of rts is hogwash, as is the claim that the country’s ‘silence’ in the face of the claims of the two members of congress re incorporation somehow constitutes consent. Opponents threw everything at the proposed amendment but the kitchen sink, ie claiming it would enfranchise blacks, but no one thought to warn that it would subject the sts to the bill of rts.
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October 20, 2009, 4:55 pmjrose says:
The fact remains that there is a broad understanding of the meaning of the 14th amendment’s terms that can be gleaned from the newspapers of the period. And that broad understanding is that it constitutionalized the CR Act of 66.
This claim troubles me.
Firstly, if the 14th was to be no more than a constitutionalized version of the CR Act of 66, why didn’t its text match that of the statute. Secondly, the commonly understood meaning of “privleges and immunities”, “due process”, and “equal protection” could not have been limited to the CR Act.
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October 20, 2009, 7:38 pmPeter says:
jrose:
The 14th in its entirety was not intended merely to provide a constl basis for the CR Act fo 66. The p and i clause of the 14th was. The fact remains that when section two of the amendment was described during the ratif process, the most common description of its purpose–by far–was that it would provide a const basis for the CR Act of 66. It was often described as protecting the civil rts of blacks. To go home from the phrase, ‘civil rts’ to incorp the entirety of the bill of rts doesnt hold water either.
I am not certain why Congress didnt just use the language of the CR Act in the amendment, obviously they wanted broader language. However, the phrase ‘p and i’s’ had a clear meaning among lawyers–the meaning Justice Washington gave to the original p and i clause in corfield v. coryell. the rights he assigned to it, ie access to seaports and fed offices, did not include anything in the bill of rts.
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October 20, 2009, 8:08 pmOren says:
That’s obviously the first half. The second half is that when a dissenting Justice does not have the votes, he should apply the precedent as it is, not as he wishes it to be.
He should apply Tucker as faithfully as he can to the particular facts, notwithstanding his belief that Tucker is itself incorrect.
The harm is that he evinces a lack of respect for his colleagues and for the Court as an institution.
Let me rephrase what I mean: in a case that does not present the question “Should XXX be overruled” (usually because there’s no chance of such), every Justice should treat XXX as good law. The Court is not shy about asking the parties to brief whether to overrule a precedent (see, e.g. Citizens United v. FEC) but when it’s not on the table, it’s not on the table.
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October 20, 2009, 8:19 pmJ. Aldridge says:
Woman could not “bear arms” but they owned guns of all sorts and used them. You had to once pledge to “bear arms” to become a citizen of the United States.
What is that nonsense you are talking about there? :-)
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October 20, 2009, 8:51 pmJ. Aldridge says:
Exactly. The civil rights act of 1866 did not protect the citizens of a state from themselves but from discrimination of United States citizens as was the case of President Johnson’s pupet governments he set up in former rebel states.
“It does not prohibit you from discriminating, between citizens of the same race, or of different races, as to what their rights to testify, to inherit, etc., shall be. But if you discriminate, it must not be “on account of race, color, or former condition of slavery. That is all. If you permit a white man as an infidel to testify, so you must a colored infidel. Self–evidently this is the whole effect of this first section. It secures not to all citizens, but to all races as races who are citizens––equality of protection in these enumerated civil rights which the States may deem proper to confer upon any races.” –Samuel Shellabarger
If Johnson never set up governments in the former rebel states without consulting congress there never would had been a 14th amendment.
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October 20, 2009, 9:04 pmjrose says:
Peter,
If indeed Washington’s view of “privleges and immunities” was the commonly undertstood meaning, it seems to me to be rather broad (“in their nature, fundamental ... which have, at all times, been enjoyed by the citizens of the several States which compose this Union,... the enjoyment of life and liberty ... to pursue and obtain happiness and safety”).
That doesn’t sound to distant from the fundamental rights analysis used in substantive due process, even possibly mimicking “deepy rooted in this Nations’ history”.
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October 20, 2009, 9:11 pmJ. Aldridge says:
It is silly to try and define all the P&I’s because they are privileges of state citizenship enjoyed in each state. Every state provided to its citizens protection of the laws in life, liberty and property (due process). Aliens could be excluded, but citizens of other states could not be treated as aliens. But citizens who happened to be black could be exceptions and treated as alien. That was the entire purpose of the P&I’s, to remove alienage from citizens of other states.
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October 20, 2009, 10:08 pmAlan says:
He’s not a judicial conservative. He’s voted to overturn lots of precedents and signaled his willingness to overrule many more. New York v. Belton, Stanford v. Kentucky, Bowers v. Hardwick, Gregg v. Georgia, United States v. Morrison... He’s just as enthusiastic about overruling precedents he dislikes as anyone else.
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October 21, 2009, 12:18 amjrose says:
It is silly to try and define all the P&I’s because they are privileges of state citizenship enjoyed in each state ... That was the entire purpose of the P&I’s, to remove alienage from citizens of other states.
It may well be the case that Article IV’s P&Is are nothing more than a guarantee that a state not treat another state’s citizens as aliens, thus permitting each state to define for itself what a P&I is, and implying that Article IV is silent on what constitutes a P&I. However, doesn’t it seem like the 14th set a national standard for what a P&I that requires definition?
Or, we could just be conservative, respect precedent, and agree the P&I clause is a dead letter (and instead analyze substantive due process).
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October 21, 2009, 5:51 amPeter says:
Jrose:
Your comment re Justice Washington’s opinion is a very good point–it was hopelessly broad.
There isnt anything conservative about preserving subst due process because it is hopelessly vague and extraordinarily destructive. It has turned the federal system on its head and converted the Sup Ct into a national privy council armed with a veto power over the states.
While some of the rts listed in the CR Act of 66 were taken from corfield v coryell, the fact remains that the CR Act of 66 was more specific. It wasnt understood as including all of Washington’s rhetorical flourishes. In providing that the states could not discriminate in bestowing rts among their own citizens, the p and i clause of the 14th am was broader than the CR Act of 66. However it was not understood as endowing the fed cts and Congress with authority to ensure that sts respected all ‘fundamental’ rts. This is why advocates of the 14th am were able to deny that amendment bestowed a rt of suffrage upon blacks.
The p and i clause was understood to provide to a constl basis for the CR Act of 66. The CR Act of 66 was not understood as encompassing the bill of rts, or all ‘fundamental rts.’ There may be good practical reasons today for accepting the incorporation doctrine, but as a historical matter, the idea that Americans and st legislatures in particular viewed the 14th am as incorp the bill of rts at the time they adopted it has no validity.
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October 21, 2009, 8:29 amDavid Nieporent says:
Great. All you have to do is prove any of these points, which you can’t do. We have Aldridge claiming that the 14th Amendment doesn’t incorporate the BoR because we have to treat Bingham’s words as sacred text — even though Bingham explicitly said that the 14th Amendment does incorporate the BoR. And we have you arguing that the 14th Amendment doesn’t incorporate the BoR because Bingham is just an obscure lawmaker and we shouldn’t pay any attention to what he said.
It makes little sense to claim that the 14th was merely intended to constitutionalize the CRA, because if so, they could have just used the words of the CRA, instead of saying something entirely different.
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October 21, 2009, 11:34 amPeter says:
David Nieropent,
Actually, I can prove them. As I have previously indicated, go to Proquest, do a search of newspapers from the ratification period, and will see numerous reports re speeches of advocates of the amendment suggesting it provided a constitutional basis for the Civil Rights Act of 1866. Bingham claimed amendment would incorp the bill of rts, as did Howard, but their claims were mere drops in the bucket compared to the alternate interpretation of section 2–that it provided constl authority for the CR Act of 66. Bingham is not an obscure lawmaker, and I did not claim he was. However the sheer volume of claims that the amendment merely constitutionalized the CR Act of 66 in comparison to his claim and that of Howard makes it evident the country did not view itself as subjecting the legislatures to the bill of rights.
It is true that lawmakers could have phrased the p and i clause with the exact words in the CR Act of 66. I dont have to explain why they failed to do so, because what really matters is the understanding of the clause that prevailed in the minds of state lawmakers, advocates of the amendment and opponents of it. While the reporting we have of the debates in the legislatures is limited, the available materials show absolutely no indication that lawmakers thought they were subjecting st laws and cosntitutions to the bill of rights. Opponents of ratification utilizied every available argument, but it did not occur to them to suggest the amendment incorporated the bill of rights. Advocates of the amendment did not make that argument either. The debates of the ratification struggle were well documented in the papers, and the newspaper reports are almost competely devoid of discussion of the bill of rights during the relevant period. On the other hand, they contain numerous reports of speakers claiming the amendment would provide const authority for the CR Act of 66.
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October 21, 2009, 11:49 amjrose says:
It is true that lawmakers could have phrased the p and i clause with the exact words in the CR Act of 66. I dont have to explain why they failed to do so, because what really matters is the understanding of the clause that prevailed in the minds of state lawmakers, advocates of the amendment and opponents of it.
This strikes me as wrong. It’s as if we say “X”, but we all wink at each other and “know” we really mean “Y”. Put me in the camp that concludes the text needs to speak for itself and we shouldn’t trust claims made in the debates.
If being true to original common understanding is conservative, then it might be conservative to give the P&I clause a broad interpretation that is more in line with substantive due process precedent than what Peter argues for.
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October 21, 2009, 12:46 pmPeter says:
Jrose:
I could not agree more that the text speaks for itself. And the text says nothing re the bill of rights, and no clause in the text was commonly understood as incorporating the bill of rts or even fundamental rts. Live by the rule you cite.
There was no ‘winking’ in the ratification process–people on both sides expressed their understanding of the clause, after the speeches of Howard and Bingham in feb and March of 66, almost no one during the next two years, in all of the hundreds speeches and debates, on either side of the issue, expressed the claim or argued that the clause incorporated the bill of rts.
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October 21, 2009, 1:22 pmjrose says:
I could not agree more that the text speaks for itself. And the text says nothing re the bill of rights
OK. What then was the common understanding of the phrases “privleges and immunities”, “due process” and “equal protection”.
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October 21, 2009, 1:51 pmJ. Aldridge says:
No. The CR act of 1866 simply said states could not place a black man on a different footing than the white man in protection of life, liberty and property. The 14th amendment was not any broader than the CR act of 1866. Bingham said so himself.
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October 21, 2009, 11:09 pmJ. Aldridge says:
Just what they said it meant during the debates: Proceedings in the administration of justice. Due process and the equal protection is the same thing: A state may not deny its laws of protection in due process nor can it unequally adminster them. A very plain and simple concept.
As far as as what P&I’s were concerned, it simply meant whatever P&I a state guarantees to all men, hence, protection in life, liberty and property!
So simple.
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October 21, 2009, 11:16 pmjrose says:
As far as as what P&I’s were concerned, it simply meant whatever P&I a state guarantees to all men, hence, protection in life, liberty and property
Are you arguing each state could decide for itself how the law treats P&Is (protecting some and abridging others), and need only apply this treatment equally to black and white men? The text clearly contradicts such a claim, instead prohibiting any state from abridging P&Is.
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October 22, 2009, 9:18 amJ. Aldridge says:
P&I’s were inserted for one reason: Remove alienage among citizens of different states. P&I’s have nothing to do with citizens of a State within their own state, hence, why Bingham said before and after the adoption of the 14th amendment: “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”
A state could say a black child cannot be educated in a white school and it would be no violation of the 14th amendment. Bingham’s own state had such a law and he fond it to be no violation of the 14th.
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October 22, 2009, 10:50 pmjrose says:
J Aldridge,
Clearly, you and I disagree about the text speaking for itself.
We shouldn’t rely on any person who says “X” means “Y”. That person cannot speak for others. Moreover in this case as Nieporent points out, we cannot agree on what Bingham said. Finally in this instance, your interpretation makes the 14th’s P&I redundant with Article IV’s P&I.
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October 23, 2009, 8:11 am