How Can You Tell if A Justice Is "Liberal" or "Conservative"?:
In the comment thread in my post on today's new Supreme Court decision, an interesting discussion emerged on how you can tell if a Justice is "left of center" or "right of center," "liberal" or "conservative." Are these labels useful or misleading? What's the frame of reference — the Court, the American electorate, or something else? And how can you read views about the law as views about left-right politics?
These are interesting questions, I think, so let me offer some thoughts. In my view, these labels are a moderately useful shorthand when focused on Supreme Court Justices. The United States Supreme Court picks the cases it wants to hear; every year it picks around 80 cases and issues opinions in that set of 80 cases. As a result, we can look at the political valence of a particular Justice's votes and written opinions in those 80 cases and compare them to the status quo before the Court granted cert.
My sense is that we tend to apply terms like "liberal" and "conservative" to individual Justices by looking at those cases and asking if Justice X's votes consistently try to pull the law to the left or the right compared to a world in which the Court took no cases. If a Justice consistently votes to pull the law to the right, we label that Justice a conservative; if a Justice consistently votes to pull the law to the left, we label that Justice a liberal; and if a Justice's votes reveal no consistent patterns, we label that Justice a moderate.
What this means, I think, is that calling someone a "conservative Justice" does not mean that the Justice is conservative politically or votes for Republicans. Conversely, calling a Justice a "liberal" does not mean that the Justice is liberal politically or votes for Democrats. In the case of Supreme Court Justices, the label is just a shorthand signaling that the Justice's votes tend to have the effect of pushing the law in a direction that favors the policy preferences on one side or the other. Thus, we might find a Justice shifting from being a liberal to a conservative even if the Justice's views don't change. A good example is Justice Frankfurter, who was considered a liberal in the 1930s but a conservative in the 1950s in part because the political valence of judicial restraint had shifted.
Finally, I think these labels are somewhat relative to the Court itself. For example, consider a Justice who never departs from precedent under any circumstances, and always tries to match new cases as faithfully as possible to the old. If a majority of the Court consistently wants to depart from precedent in a way with a particular political valence, the stare-decisis Justice will be labeled in part in opposition to how the other Justices are labeled. If the Justices who want to depart from precedent tend to embrace views consistent with political movement X, then the stare decisis Justice will be labeled not-X. This in part explains Frankfurter's "shift"; he didn't consistently follow the Justices who wanted to shift the law in a way that had a liberal political valence, so he was labeled a conservative at the end of his years on the Court.
These are interesting questions, I think, so let me offer some thoughts. In my view, these labels are a moderately useful shorthand when focused on Supreme Court Justices. The United States Supreme Court picks the cases it wants to hear; every year it picks around 80 cases and issues opinions in that set of 80 cases. As a result, we can look at the political valence of a particular Justice's votes and written opinions in those 80 cases and compare them to the status quo before the Court granted cert.
My sense is that we tend to apply terms like "liberal" and "conservative" to individual Justices by looking at those cases and asking if Justice X's votes consistently try to pull the law to the left or the right compared to a world in which the Court took no cases. If a Justice consistently votes to pull the law to the right, we label that Justice a conservative; if a Justice consistently votes to pull the law to the left, we label that Justice a liberal; and if a Justice's votes reveal no consistent patterns, we label that Justice a moderate.
What this means, I think, is that calling someone a "conservative Justice" does not mean that the Justice is conservative politically or votes for Republicans. Conversely, calling a Justice a "liberal" does not mean that the Justice is liberal politically or votes for Democrats. In the case of Supreme Court Justices, the label is just a shorthand signaling that the Justice's votes tend to have the effect of pushing the law in a direction that favors the policy preferences on one side or the other. Thus, we might find a Justice shifting from being a liberal to a conservative even if the Justice's views don't change. A good example is Justice Frankfurter, who was considered a liberal in the 1930s but a conservative in the 1950s in part because the political valence of judicial restraint had shifted.
Finally, I think these labels are somewhat relative to the Court itself. For example, consider a Justice who never departs from precedent under any circumstances, and always tries to match new cases as faithfully as possible to the old. If a majority of the Court consistently wants to depart from precedent in a way with a particular political valence, the stare-decisis Justice will be labeled in part in opposition to how the other Justices are labeled. If the Justices who want to depart from precedent tend to embrace views consistent with political movement X, then the stare decisis Justice will be labeled not-X. This in part explains Frankfurter's "shift"; he didn't consistently follow the Justices who wanted to shift the law in a way that had a liberal political valence, so he was labeled a conservative at the end of his years on the Court.
Do you mean that as a joke? Or are you being serious?
Seems a bit biased description there. How about 'If they see their job as to affirm convictions, they are to the "right." If they see it as their job as to find any reason to let someone go free, they are to the "left."'
There are plenty of cases where the "right" saw themselves as "applying the law even if it means letting a person who is morally innocent be convicted" (see Chief Justice Roberts and the french fry girl) and the "left" saw themselves as needed to depart from the written law to obey some higher law that demanded that someone go free, or else to write new laws.
Okay, but there is this marvelous coincidence that Justices tend to pull the law in the direction that favors their policy preferences. A few exceptions do not disprove the rule.
I guess that's a fair definition of liberal versus conservative, but I just don't think that liberal/conservative is the best way to predict or cluster justice voting. I think originalist/not originalist, textualist/purposivist, and a variety of other methodological labels are probably better.
For instance, was Thomas being "liberal" in Raich because he voted for a marijuana-friendly law, or was he being "conservative" because he was voting for the state. I think the best answer was neither, and that he was voting Federalist, which is a better predictor for the current court.
We gravitate towards the "liberal/conservative" dichotomy because it's familiar and easy. It allows observers to skip method and locate the result along a familiar political spectrum. I think that's probably fine if that's what you understand what you are doing, but that terminology too frequently equates "liberal" with "activist," which is just not something the statistics bear out.
Bruce and John,
I don't think that crim procedure is the greatest litmus test, because commentators too easily elide procedural distinctions - like cases on direct versus collateral review - that make a big difference. Some justices have very strong feelings about the role of the states and therefore are far less likely to grant a habeas petition than they would be if they were to consider the issue on direct appeal, or in a federal case.
Scalia and Ginsburg flip-flopped, for example, on a habeas case last term (each voted for the "outcome" that contradicts their political characterization). Scalia and Thomas split on a couple of fourth amendment cases. All the "conservative" justices indicated that an offender could use 1983 as a vehicle to challenge a lethal injection sequence. Liberal/conservative may be capable of doing some definitional work, but far less than other explanatory variables.
Okay, but there is this marvelous coincidence that Justices tend to pull the law in the direction that favors their policy preferences. A few exceptions do not disprove the rule.
How do you know their policy preferences, apart from their supreme court opinions? Souter and Kennedy, for example, were nominated by "conservative" presidents, so you would assume that their liberal-to-moderate status on the court has more to do with their jurisprudence than their political preferences.
I think you have to distinguish between judges that are politically liberal and politically conservative on the one hand, and judges that are judicially activist and judicially conservative on the other hand.
The problem is that "conservative" in the sense of evaluating a judge can mean either "not liberal" in the sense of favoring goals that are then considered politically conservative (e.g., property rights, limiting habeus appeals, etc.) or it can mean "not activist," in the sense of willingness to disregard precedent and make great leaps forward through interpretation in the pursuit of an agenda. Maybe a better way to think of it is to call the non-activist conservatives incrementalists instead of conservative to distinguish them from political conservatives.
Brennan obviously set the standard for politically liberal activists. Frankfurter seems like a good example of a politically liberal incrementalist. Thomas seems like a good example of a politically conservative activist (disregarding stare decisis as a matter of course). I'm not sure who would be a good example of a politically conservative incrementalist; perhaps John Harlan II.
How do you know a judge's politics? Take the case of Justice Thomas, who you say is a "good example of a politically conservative activist." In Lawrence v. Texas, Thomas says that he thinks the law is silly, but that he can't find a way to strike it down. Does that make him a politically liberal incrementalist? Or do you ignore his expressed personal view in favor of his result, which was conservative?
I certainly have not made a study of Frankfurter's cases, but have always had the general impression that he remained reasonably consistent applying his notions of federalism and judicial restraint throughout his long Supreme Court career.
Orin, could you cite me to a good study of Frankfurter's Supreme Court cases?
Yes the silly law penumbra of the due process clause. I forgot about that one.
I disagree. I think most people would say that Thomas is more faithful to a specific interpretive method (whether you agree with it or not - I don't) than anyone else on the court. That method often yields politically conservative results, but he's still consistent.
And not voting to strike a law, even though one thinks it is silly, is not "patently silly" if it is subject only to the rational basis review of the due process test.
I think Orin's broader point is that you can't infer whether a judge is conforming his jurisprudence to his politics unless you have some data points other than the result of the case itself. Otherwise the argument is circular.
I don't think it's intellectually bankrupt, actually: see my essay here.
I admit that I didn't read Orin's link, so apologies if it's redundant of the material there. But I don't think the term is bankrupt - it means something, and it is a pretty useful indicator (I think) of bad judging.
What is intellectual bankrupt is the linkage between "judicial activism" and "liberal judges," at least in the sense Orin describes liberal judges on this post.
How do you know a judge's politics?
Justices are not hatched the minute they are sworn in. They have pasts, and those pasts can be instructive as to their political views. Ginsburg, as an example, obviously has a past as a liberal. I doubt she dropped that mindset the moment she became a justice. Yet, she is clearly less activist than other liberals that have sat on the court, such as Brennan and Marshall, or other liberals that sat on the DC Circuit with her, such as Wald, Edwards, Mikva, etc.
The same goes for conservatives. Not a minute goes by that Scalia is not expounding at some conference on non-judicial topics; are you suggesting that I cannot presume that he is politically conservative?
As for Thomas, apart from his past in the Bush I adminsitration, and articles such as this, his jurisprudence is hardly what you would call politically liberal. If virtually every decision he comes to is a conservative result, does that tell you something? Sure you can point to his comment in one or two cases (don't forget the pornography cases), but do you really believe that he is politically liberal, or even moderate? [And as for his activism, even Scalia has said that Thomas has little regard for precedent.]
As for Frankfurter, it is my impression that he was still liberal when he was on the court, but felt himself constrained by precedent from doing much to advance liberal interests. If I'm wrong, he's a bad example, but the point still holds. Think of it as two axes, one of which relates to ideology and the other to adherence to precedent and willingness to usurp the legislative function. Being conservative on one axis does not mean you are conservative on the other.
So under your test, was Harry Blackmun a liberal or conservative? What about Earl Warren? I gather you would say that they were both law-and-order conservatives?
My test is not limited to a judge's past, but is informed by it.
Are you suggesting that you cannot tell whether Blackmun or Warren was a political liberal? Or that the term political liberal as applied to them has no meaning and cannot distinguish them from other judges then described as political conservatives (such as Rehnquist)?
I'm not sure what we are arguing about. You seem to acknowledge in your essay that activism exists. Since it exists, then there are judges who practice it more or less than other judges. That is one way to evaluate judges. In your post above, you also acknowledge that some judges tend to rule in ways that pull the law to the left or the right, respectively. I think that is a different issue than activism, and that the use of the term conservative tends to confuse things because it is applied to both incrementalists and those that pull the law to the right.
Maybe you are just arguing that it is a coincidence that judges who tend to pull the law to the right were almost all nominated by presidents who promised conservative nominees and judges who tend to pull the law to the left were almost all nominated by Democratic presidents who promised liberal (or "fair" or "compassionate") nominees. On this theory, the judges just happened to use an interpretive method that was most likely to yield results that would appeal to their nominators, or the nominators just happened to believe in an interpretive method that would yield friendly results (but they did not like the method because of those likely results).
Maybe I'm just cynical, but I don't think it was a coincidence. In my lifetime, I haven't seen too many originalists who are self-described liberals, or even Democratic nominees; nor have I seen many living constitutionalists (or 'active libertarians') who were self-described conservatives or Republican nominees. Blackmun and Warren are two of the exceptions that prove the rule.
Blackmun and Warren are two judges that decided on interpretive methods that were likely to yield results that did not favor their nominators. I don't think either ever described themself as an originalist or even an incrementalist, but I do think they were assumed to be at least incrementalists, if not political conservatives when they were nominated because of their political pasts (and in Blackmun's case, because he was not an activist on the circuit court).
I'm not making the arguments you suggest I am making; I am just questioning how you can identify a judge's political views outside of their decisions. If I understand you correctly, your answer seems to be that "you know it when you see it." But that doesn't seem particularly helpful.
If you are not making the arguments I think you are making (i.e., coincidence), what argument are you making? How does it happen that most Republican nominees use an interpretive method that pulls the law to the right, and most Democratic nominees use a method that pulls the law to the left? How does it happen that there are very few politically liberal originalists or politically conservative living constitutionalists? Either it is coincidence, or the interpretive method follows the policy preference (and the nomination follows both). Either it is accidental or it is intentional. Is there another option?
I am saying that I think there is a difference between interpretive method and activism vs. incrementalism. You can try to pull the law to the left slowly and respecting precedent, or you can say the hell with precedent, let's do what's right, now. {The same goes for those who want to pull the law to the right.]
Is affirmative action consistent with equal protection of the law? Is the right to have sex with the person of your choosing suffiently fundamental that it deserves protection from the will of the majority? What about the right to own private property? How bad does someone's lawyer have to be before it becomes unconstitutional to execute him? What restrictions on campaign contributions, if any, are inconsistent with the freedom of speech? What are the constitutional restrictions on public religious displays?
Our Supreme Court justices have written elaborately reasoned opinions on these questions, among many others. Having read those opinions, how can we claim not to know the justices' politics?
Because we're being asked to infer that in extreme instances where judges say the constitution DOES protect some right that the judge really means that it SHOULD. Or vice versa. But there's no basis for that inference. All we have is a lot of data points about what they think the constitution DOES protect something, and we are left with snippets and comments and innuendo to discern what they think a government "should" protect.
I think my statement may have come across as being intentionally disparaging towards conservative judges. I certainly disagree with such results-oriented jurisprudence, especially in criminal cases, and most people who read this website do too. But the average voter certainly disagrees. Reversing a conviction means, to the average person, letting a convicted criminal go free due ot some technicality, so he can come back and hurt another child (always the children). A liberal judge is more likely to apply the law and let someone go based on a technicality. This is especially true when the judges themselves are deciding what "technicalities" will and will not exist.
This is particularly true in 4th Amendment search/seasure/warrant/probable cause law. Who is more likely to say a warrantless search was reasonable or a warrant was based on probable cause--a conservative judge or a liberal one? I posit that a conserative judge is vastly more likely to uphold a search/seizure. Vastly more. I absolutely stand by my comment, which I mean as seriously as any decision which keeps someone in prison.
JohnT: the Roberts DC Circuit french fry girl case was not a criminal case, it was a civil case that stemmed from a criminal case. There was some fluffy dicta in it, as I recall, but all irrelevant, as he threw out the 1983 suit.
I certainly disagree with such results-oriented jurisprudence, especially in criminal cases, and most people who read this website do too. But the average voter certainly disagrees with us. ....
I am making a point about the public practice of labeling, while you seem to be interested in why judges have particular views of the law.
I cannot guess how Souter, or Stevens voted (both Republicans before they were nominated), and but can guess how Ginsberg and Breyer voted. Does anyone seriously disagree?
As for Blackmun and Warren's jurisprudence, I think neither of them had strongly held judicial philosophies before they took the bench. That is why Blackmun drifted, over a number of years, to the left, while Warren turned out to have strongly-held views on civil liberties and the rights of minorities that he felt free to push once he became Chief Justice (but maybe didn't feel so free to do when he was the Republican governor of California, or a prosecutor).
Nowadays, the vetting process of the Supreme Court nominees is such that we have fewer surprises from them once they get on the Supreme Court. Harriet Miers' nomination was an exception. Bush's surprise nomination of her, without much political vetting, made many on the right fearful that she might turn out to be a moderate (putting aside the concern that she was hardly considered to be a deep judicial thinker).
"Felix Frankfurter, who reminded his brethren in 1939 that “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”"
Your post skips over the most-basic point -- that justices' views come bundled up in tight packages (and always have).
There's no obvious logical linkage between one's views on the President's role as commander-in-chief or the reach of the interstate-commerce clause or the Attorney General's statutory authority to regulate medical practice. But in fact, those views do come tightly linked. So much so that a simple one-dimensional ranking of the justices can predict their voting patterns on 90+% of their split decisions.
This tight packaging makes it sensible to summarize a justice's views by where he/she falls in the ranking. And we do just that, labelling one end of the ranking "left" and the other end "right".
Political scientists have demonstrated this voting pattern repeatedly, going back at least as far as the 1930s' Court. See, e.g., Quinn and Martin
It's probably best to regard this "packaging" as the result of differing personal temperaments, rather than better or worse logic. [We've all seen opinions/dissents by justices left and right that tied themselves into logical knots trying to rationally justify a justice's deeply-held intuition.] What's remarkable is that the great variety of human temperaments can be summarized in a one-dimensional scale.
By the way, Justice Frankfurter's views did evolve, of course. But Quinn and Martin's data suggest that he changed less over his tenure than have several other recent justices, such as Blackmun, Rehnquist, Scalia, and Stevens.
As an ex-statistician, I'm not sure you understand. Of course the votes cluster, but the question you seem to be addressing is why they cluster:
It's probably best to regard this "packaging" as the result of differing personal temperaments, rather than better or worse logic. [We've all seen opinions/dissents by justices left and right that tied themselves into logical knots trying to rationally justify a justice's deeply-held intuition.] What's remarkable is that the great variety of human temperaments can be summarized in a one-dimensional scale.
If you are interested in an explanatory model, you need data points other than the decisions themselves, otherwise you can't reason from the "liberalness" or the "conservativeness" of the result that the judge's intuition/values pulled in that direction.
What's remarkable is that the great variety of human temperaments can be summarized in a one-dimensional scale.
No, it's not. See, e.g., multi-peak preferences and the last 50 years of public choice theory.
I was responding to Professor Kerr's original query-- "how you can tell if a Justice is ... 'liberal' or 'conservative.' Are these labels useful or misleading? What's the frame of reference — the Court, the American electorate, or something else?"
My answer was:
(1) There's a tightly-structured voting pattern within the Court itself, consistent over time. No external referent needed.
(2) This tight structure extends across too many logically-unrelated topics, and the justices involved have offered too-many diverse philosophical justifications, for the clustering to be a product of simple rationality. Rather, it reflects underlying temperament.
So no, I wasn't seeking outside explanations.
(3) You may not find it significant that the Supreme Court's voting patterns can be summarized in one dimension, but others do.
For myself, I'm always surprised when sophisticated and complex choices unfold into extremely simple preference structures. Especially since the US polity has historically been more complex than a single dimension can account for. See Poole and Rosenthal for details (including some nice animations that show the multi-dimensionality clearly).
Not sure why you're saying that public choice theory refutes this. Could you be more specific?
It's not that I'm skipping over this -- It's just not the focus on this particular thread. I have blogged on these points before, though; see, for example, this post.
Not sure why you're saying that public choice theory refutes this. Could you be more specific?
Much as multi-peaked preferences can make location of a group's aggregate preference along a single spectrum at a fixed point in time impossible, for many the same reasons you cannot locate an individual judge's aggregate preferences along a single spectrum if you do NOT fix the time variable.
Which does not mean he is activist. Overturning precedents not in keeping with the constitution is not activism, it is fidelity to the constitution.
Yours, TDP, ml, msl, &pfpp