Is Justice Stevens a Judicial Conservative?:
In a recent interview with Jan Crawford Greenburg, Justice Stevens stated that he sees himself as a "moderate conservative" Justice:
I wonder, though, 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 But if he has this somewat outdated framework in mind, then it doesn't seem particularly inaccurate to me.
For my thoughts on the modern usage of such terms, see my earlier post, How Can You Tell if A Justice is 'Liberal' or 'Conservative'?
Thanks to How Appealing for the link.
Although Stevens is a maverick thinker who has proven to be surprisingly liberal and has kept the court from moving further to the right, today the justice said he stills sees himself as a conservative.My guess is that this will draw strong reactions from both sides of the political spectrum. I gather some conservatives will insist it is more proof that Stevens is out to lunch, and I gather some liberals will insist it is more proof that today's 'conservatives' are really lunatic neanderthals.
"I don't really think I've changed. I think there have been a lot of changes in the court." said the 86 year old Justice. "I can see myself as a conservative, to tell you the truth, a judicial conservative."
I wonder, though, 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.
For my thoughts on the modern usage of such terms, see my earlier post, How Can You Tell if A Justice is 'Liberal' or 'Conservative'?
Thanks to How Appealing for the link.
The trouble with the word conservative when used to describe judges is that it is used in both contexts, anti-activist and anti-liberal. It could mean either, or both.
I'm generally skeptical of trying to apply labels to groups of people, but I don't think this definition is very accurate. Using it, I'd be forced to say that today's originalists are therefore "liberal", a label that seems odd, to say the least.
If you asked me to point to what the "liberals" had in common, I'd say commitments to federal power over the economy and certain of the Bill of Rights, and a general, but not universal, attitude of legal realism. "Conservatives", in contrast, tended to favor state power and legal formalism. I think this works reasonably well from about 1940 to about 1985, but even then it wouldn't apply to everyone.
I guess if you look for cases where Stevens and Thomas were on one side and O'Connor was on the other - that's probably what has stuck in Stevens' mind as defining his judicial conservatism, and not the whole host of cases where he and Souter have been holding hands.
What does this mean:
a conservative, in the european sense, is a traditionalist usually with patriotic sentiments but not strong enough to be classified as far-right(which in the european sense means virulently nationalistic/racist)
a liberal, in the european sense is either "liberal and leftist" or "liberal but not leftist". The former tends to support socialist economic policies and believe more are needed. The latter is more like what we call libertarian. They oppose socialism and argue that much less state intervention is needed.
A european liberal wants to change the status quo. A conservative wants to preserve the existing institutions.
So Mark, I think the magic you need is "and leftist" and "but not leftist"
My thought exactly! The man is 86 years old, and he still won't retire! What in heavens name is wrong with him? Plus, there is the fact that almost everyone experiences significant intellectual decline at those advanced ages. We can't find someone more suited the job? How about some term limits here?
Just curious, but what is to prevent a SC justice from staying on the bence after they are no longer capable of serving? Is there a procedure for removing someone from the SC if they are medically disabled? Or is it always done by the power of... suggestion?
But institutions have already been changed.
That's what Douglas did. The implied threat is that the other justices would go public with how gaga you were, and the Congress could then remove you. I'm sure there's a technical issue as to the availability of impeachment in such a case, but I doubt that would stop anyone.
Douglas retired before anyone had to "go nuclear."
--Btw, no surprise that commenters who identify "conservative" w/ "favors my policy preferences" are puzzled by Stevens. Anyone recall which way he voted in Texas v. Johnson, the flag-burning case?
This seems to beg the question I raised earlier: how do we characterize someone who wants to change the status quo back to what s/he believes it once was?
"Liberal" seems the wrong word for that. We used to use "reactionary", but that has a pejorative edge to it that limits its use.
Interestingly, he was in dissent in Kyllo and in Texas v. Johnson.
He also was in the majority in Oregon v. Smith and City of Boerne, which is consistent with his establishment clause views.
As for his age, the guy still seems pretty sharp.
Exactly, most people would consider Thomas conservative but if you use it in this sense then isn't he actually liberal? He wants to eliminate nearly a century's worth of Establishment Clause and Commerce Clause jurisprudence (whether or not he is right is a different issue the fact is that he admits that this is the case).
If Scalia did that, people would laugh.
In truth, Scalia's claim to be a moderate liberal would be on stronger ground than Stevens' claim to be a moderate conservative.
Scalia has often (rightly) voted to strike down legislation favored by social conservatives, like the Communications Decency Act and the flag-burning law. He has also (wrongly) voted to strike down many criminal sentences under the Booker line of cases.
But Justice Stevens has very seldom voted to strike down laws favored by social liberals, even when they conflict with past Supreme Court precedents and the clear text of constitutional provisions. And he rewrites federal statutes to exempt from regulation practices favored by liberal activists.
Justice Stevens is much more liberal than Scalia is conservative.
He just doesn't realize it because he's surrounded by a liberal echo chamber (the legal profession). The American people are fairly moderate. But the legal profession is quite liberal, as is the Supreme Court bar.
When Clinton beat Bush the elder in 1992, his victory margin among the general public was only about 6 points. But he won among lawyers by a roughly 2-to-1 margin. And even most Republican lawyers are socially liberal, not socially moderate, and they are Republican based largely on non-legal issues, like opposition to high marginal tax rates.
The fact that Justice Stevens is a much nicer man on a personal level than the liberal justice he replaced (Douglas) and avoids taking overtly partisan positions the way Douglas did doesn't mean that he isn't liberal, any more than the fact that Rehnquist didn't publicly endorse Republican candidates didn't mean Rehnquist wasn't fairly conservative.