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Why Do Conservatives Care So Much About the Courts?:
The Rasmussen Reports survey of public attitudes towards the courts demonstrates just how much Republican voters care about the Supreme Court:
When it comes to how they will vote in November, Republican voters say that the type of Supreme Court Justices a candidate would appoint is more important than the War in Iraq. The latest Rasmussen Reports national telephone survey found that 44% of Republicans pick the economy as the top voting issue, 30% name judicial appointments, and just 19% pick the War in Iraq. . . . Just 7% of Democrats name judicial appointments as the most important of those issues.
  The fact that Republican voters care a lot about the courts isn't exactly news. The question is, why is that true? Why are conservatives so focused on — so obsessed with — the courts?

  Let me paint with a very broad brush and offer my best explanation. The primary reason, I think, is the nature of the Supreme Court's docket in the last fifty years. During that period, most high profile Supreme Court constitutional law decisions have considered whether to ban practices embraced by conservatives rather than whether to ban practices embraced by liberals. For conservatives — especially social conservatives, and especially religious conservatives — the question has been whether the courts will allow their views, not whether the courts will mandate them.

  Think about abortion, school prayer, gay rights, flag burning, the death penalty — you know, the real 'hot button' issues. In each of these areas, a victory for the conservative side means that the political process is left unaltered. On the other hand, a victory for the liberal side means that the court intervenes and mandates that the majority preference — the generally conservative view — is out of bounds.

  That's generally the opposite of the experience for those on the liberal side of the political spectrum over the last few decades. For liberals, the key question usually has been whether the courts will mandate their views, not whether the courts will allow them. On most of the hot button issues, a victory for the liberal side means that liberals are saved the trouble of going through the political process. A loss doesn't mean their view is not permitted, only that the issue is dealt with in the elected branches like most other issues.

  I think this trend helps explain why conservatives today are much more focused on the courts than are liberals. Being told that the courts won't let your views be law is a lot more painful and upsetting than being told the courts alone won't win it for you. It's partly loss aversion, I suspect, and partly the fact that constitutional decisions are much harder to reverse than legislative ones. Whatever the precise reasons, the cumulative experience of this happening year after year, Term after Term, starts to really hurt. It becomes a sore point, a raw wound. I think that goes a long way towards explaining why conservatives care significantly more about the courts.

  If you're unconvinced, consider some of the relatively uncommon hot-button cases when the usual valence is reversed. That is, consider a case asking the Court to ban a practice generally favored on the left. The obvious example: Race-based affirmative action. On the road to Gratz and Grutter, supporters of affirmative action weren't unconcerned or ignorant about the Supreme Court's involvement in the issue. Hundreds of thousands of affirmative action supporters were passionate and outspoken — they cared, and they protested, and they thought it was incredibly important. It was a really really big deal.

  That's just the kind of reaction you would expect when people feel that the Supreme Court might take away their right to set their own rules. And it's a dynamic that in recent decades has been felt significantly more often on the right than on the left.
Cornellian (mail):
During that period, most high profile Supreme Court constitutional law decisions have considered whether to ban practices embraced by conservatives rather than whether to ban practices embraced by liberals. For conservatives — especially social conservatives, and especially religious conservatives — the question has been whether the courts will allow their views, not whether the courts will mandate them.

Think about abortion, school prayer, gay rights, flag burning, the death penalty — you know, the real 'hot button' issues. In each of these areas, a victory for the conservative side means that the political process is left unaltered. On the other hand, a victory for the liberal side means that the court intervenes and mandates that the majority preference — the generally conservative view — is out of bounds.


That only holds true for abortion if you disregard federalism. If a Republican Congress attempts to impose some type of abortion ban in a state that would not enact such a ban, a decision upholding that ban under the Commerce Clause (or some other basis for federal jurisdiction) is mandating the conservative position, not leaving it up to the political process.

Also, "during the last 50 years" glosses over very recent events, such as Raich v. Ashcroft, Gonzales v. Washington and the Terry Schiavo law, all of which involved the courts upholding "conservative" action by the feds against states where that action could never had won the support of the electorate.

In the case of Gonzales, it was the pure diktat of an unelected federal attorney general overruling a law enacted directly by the voters of Washington.

I realize the Schiavo law didn't end up working, but that's not because it was held unconstitutional.

By the way, I put "conservative" in quotation marks because in all of these contexts, that label is highly debatable. Those cases were all "conservative" in the sense of promoting social conservative policy positions. In terms of respect for an originalist view of the constitution or the sovereignty of the voters, they were anything but conservative.
5.22.2008 3:08am
OrinKerr:
Cornellian,

With respect, I fear you're missing the argument. My claim is that people are reacting to cumulative experience over a period of decades. Given that, the fact that you can imagine cases that would be different is obviously true but also irrelevant.

Also, I entirely agree that labels like conservative and liberal lack nuance; that is why I began my analysis by writing, "Let me paint with a very broad brush." I think the labels lack nuance, but they get across the basic trend in a way that is difficult to do otherwise.
5.22.2008 3:16am
Cornellian (mail):

Think about abortion, school prayer, gay rights, flag burning, the death penalty — you know, the real 'hot button' issues. In each of these areas, a victory for the conservative side means that the political process is left unaltered.


Oh yes, forgot to mention the Boy Scouts case, another example in which the "conservative" position goes to court to try to reverse the effect of the political process.

As I said in my post, all these cases are very recent, so there might well be a delayed effect in which people are still energized by stuff that happened 20 or 30 years ago.
5.22.2008 3:25am
Some_3L (mail):

In each of these areas, a victory for the conservative side means that the political process is left unaltered. On the other hand, a victory for the liberal side means that the court intervenes and mandates that the majority preference — the generally conservative view — is out of bounds.


I recall reading an article by Lino Gralia where he expressed the similar thought that at the Supreme Court, conservative causes don't always lose, but they never win. At the same time, liberal causes don't always win, but they never lose.

As for why conservatives care so much, I'm a conservative and I care because Roe must be overturned. I believe (hope?) if we put it to a vote, abortion would be very restricted, if not abolished, in many states, which would be a good thing. If we lose the vote, well, at least it won't feel like the referee stole the game.

As upset as I am about McCain getting the nomination, it won't stop me from voting for him for the small chance he will appoint a Roberts/Alito type justice.
5.22.2008 3:36am
Perseus (mail):
I agree with Prof. Kerr's main point, but just to help out Cornellian, I'd add Kelo v. City of New London and campaign finance reform as additional instances in which we conservatives want to limit the scope of the regular political process.
5.22.2008 3:39am
George Weiss (mail) (www):
most voters are not experts on each issue-and constitutional interpretation is just another issue

so i bet its as simple as the fact that roe v wade is probably the most known and most highlighted (in confirmation proceedings media annual protest/agreement marches etc..) high court decision there is and also the most infamous example of judicial activism-and that energizes the political feeling of conservatives-to this day.

since the liberals won that battle-they arn't as upset about it-after all-we focus more on what goes wrong than what goes right.
5.22.2008 3:43am
Nathan_M (mail):
I agree with you main point, but I also wonder how much of a self-fulfilling prophesy has developed, in that many conservatives are convinced that the courts are illegitimate, left-wing, institutions. This impression is reinforced with every decision conservatives don't like, so many people will blame "activist judges" even for predictable ruling such as Kelo.

I don't know how to explain the passion an issue like tort reform can generate, aside from a deep aversion on the part of many conservatives to the courts.

Liberals, on the other hand, see courts more as the protectors of important rights, because of cases like Loving, Roe, and Brown. Because liberals tend to be supportive of the courts in general, even if they passionately dislike certain judges, there isn't much of a sustained organized outcry on the part of liberals even in response to as monumental, and highly questionable, a case as Bush v. Gore.

I can't help but think that if five judges appointed by Democrats had reversed a Fla. S.C. decision and given the 2000 election to Gore, in a thoroughly unconvincing opinion, the the conservative reaction would be much louder.

So I think you have identified one reason conservatives care more about the courts than liberals, but I think another important factor is a vicious (or virtuous, depending on your point of view) cycle, which occurs because conservatives are politically mobilized against the courts. Since conservatives have spent years arguing against the legitimacy of the courts, they are more outraged than liberals when they lose, which causes them to care even more about the courts, etc., etc.

I hope I haven't just echoed Cornellian's "there might well be a delayed effect in which people are still energized by stuff that happened 20 or 30 years ago" comment with twenty times as many words.
5.22.2008 4:10am
Snarky:
I will tell you why conservatives care so much more about the courts.

Because they are dogmatic.

They argue and believe that it is there way or the highway. The living constitutionalism is fundamentally illegitimate.

Liberals may not prefer originalism. But they do not view conservatives who advocate it advocating something that is entirely illegitimate. Originalism is an acceptable, even if sometimes distasteful method of jurisprudence. In contrast, conservatives not only do not prefer living constitutionalism, they think those who advocate it are advocating something that is totally illegitimate. I also think they tend to view the advocates of a more living constitutionalism as evil.

Nevermind that conservatives reject originalism in the context of the First Amendment when they advocate for bans on restrictions to campaign finance.

Conservatives have their blind spots. But they have worked themselves into a self-righteous lather about the judicial process. See Slouching Towards Gomorrah: Modern Liberalism and American Decline by Robert Bork as Exhibit A.
5.22.2008 5:14am
Duffy Pratt (mail):
Campaign Finance and Eminent Domain are two areas where conservatives are looking to shut off the political process, and simply win in the courts.

I'm also not convinced if Constitutional issues are the only driving force. Here in Texas, the push by conservatives has been for tort reform and against "frivolous lawsuits."
5.22.2008 5:51am
Michael Mouse (mail):
For liberals, the key question usually has been whether the courts will mandate their views, not whether the courts will allow them

Really? On four out of the five hot-button issues you mention (abortion, school prayer, gay rights, flag burning), a victory for liberals means (or would mean) that the law no longer mandates conservative behaviour: if liberals had their legal way, individuals, not the state, would decide whether or not to have an abortion, to pray in school, to marry someone of the same sex, or to burn the flag. If conservatives have their legal way, conservative-approved choices on those matters are mandated.

Admittedly the case of the death penalty is a bit different - the matter of individual choice there is a little more complex there (!).

I think you are right, though, that there's a fundamental difference in the fight between people who want to keep things as they always have been and people who want a change. If you want to keep things the same, you have to win every battle - if you win once, you have to win again, and again; but if you want things to change, you can lose once and try again until you win. Once you've won, things have changed, and changing them back will (probably) not be the same as before.
5.22.2008 6:51am
Bama 1L:
Here's the obligatory "Does the poll really tell us that?" post.

It looks like Rasmussen asked respondents to identify the most important of three issues that might influence their vote for president in 2008: the war in Iraq, the economy, and judicial appointments. It's certainly possible to rank any of these highest and still think the others are pretty important.

So while I don't doubt Republicans are more concerned about judicial appointments than Democrats are, this poll doesn't quite get us there.
5.22.2008 7:11am
Brett Bellmore:
Once you've won, things have changed, and changing them back will (probably) not be the same as before.


It's not just that, but as Orin points out, once liberals have won in the courts, 'constitutionalizing' their policy preferences, it becomes remarkably hard to reverse those changes. Especially given the tendency of more 'conservative' judges to respect stare decisis even in cases where the decision is clearly wrong, while the 'liberal' judges have little respect for it. It's been called the "ratchet", and it's a very real phenomenon.
5.22.2008 7:21am
A. Zarkov (mail):
" ... if liberals had their legal way, individuals, not the state, would decide whether or not to have an abortion, to pray in school, to marry someone of the same sex, or to burn the flag."

Liberal oppose even voluntary prayer in public schools.

Liberals don't want you carry a gun, smoke, build a nuclear power plant, an oil refinery, drill for oil, grow GM crops, use DDT, or on campus, express an opinion they don't approve of, or even look at a woman in the wrong way. Do you think the conservatives are responsible for campus speech codes?

BTW I know a guy, who was brought on charges at a US government laboratory for "leering." That's right some woman said that he was looking at her wrong from across a room from his wheelchair, and it caused him a pack of trouble.
5.22.2008 7:21am
Stryker (mail):
Michael, No.

abortion, Victory by Cons means the states' and/or federal congresses get to regulate abortion. Victory by Libs means there can be NO reasonable limit to access...

school prayer, Victory by Cons means the school boards get to regulate school prayer. Victory by Libs means there can be NO school prayer...

gay rights, Victory by Cons means the states' and/or federal congresses get to regulate how gay marriages are treated, and possibly if homosexual activyity is permitted at all. Victory by Libs means there can be NO discrimination by governemtal units...

flag burning -- Victory by Cons means the states' and/or federal congresses get to regulate flag burning. Victory by Libs means there can be NO reasonable limit to flag burning...

"If conservatives have their legal way, conservative-approved choices on those matters are mandated." not true at all. "If conservatives have their legal way, conservative-approved choices on those matters are" decided by other political bodies.

maybe you didn't read the post, but it's pretty clear that the difference is that with the Cons winning, there is still more fighting to be done before their position is upheld.

In my own opinion, I think the only reason the courts are so important to the cons is that it is all that is left for them to vote R at all, riht now. That is, until there is a menace to defeat, there is no reason to vote McCain. He isn't significantly different on the War than Hil, has no more econ experience. Seems to be open to some sort of health care mandate. The big difference cons are hoping for is in his judicial nominations. THATs why it matters.
5.22.2008 7:30am
Snarky:
Poll for conservatives:

Is living constitutionalism, (1) merely wrong or (2) fundamentally illegitimate?

Poll for liberals:

Is originalism, (1) merely wrong or (2) fundamentally illegitimate.

Here is my bet. If you were to poll conservatives, I bet most would choose 2, while if you polled most liberals they would choose 1.

It is a lot easier to get very worked up when you think the other guy is advocating something that is fundamentally illegitimate versus when you think the other guy is advocating something that is merely wrong.
5.22.2008 7:40am
p3731 (mail):
You're by far my favorite VC poster, but this post leaves me more confused than before. What exactly do you mean by Conservative? You seem to be using the word in about 3 different ways at the same time. "Liberal" and "Conservative" are no longer (and maybe never were?) descriptive terms, but rather fundamentally agonistic, political buzz words that have no place in scholarship. They're like "pro-choice" and "pro-life" - they're code words, and rallying cries, not neutral terms suitable for use by impartial scholars. You simply *must* use more fine-grained distinctions than the one between "Democrat" and "Republican" if you want to make sense of these issues.

You would be doing many of us a big favor if you went back to the drawing board and really, really thought about what you mean to say in this context.
5.22.2008 7:50am
pireader (mail):
Professor Kerr -

A thoughtful post, as usual. I agree with your description of the phenomenon--conservatives are more focused on thecourts than liberals--but I'd point to a different cause for it.

The Republicans who are wound up tight about the courts are the social conservatives; the other two major tendencies amongst Republicans, the free-marketers and the foreign-policy hawks, have different priorities. These social conservatives are a minority; and they're championing a traditional legal order that imposes burdens on the rest of the population. So, in democratic societies, they're going to lose on these issues, one way or another ... just as they have in other developed countries around the world, without participation by the courts.

After all, panels of elderly establishment lawyers don't get very far out in front of the country on social issues, and stay there. By the time the appellate courts act on an issue, it's pretty ripe.

Of course, the social conservatives don't like these political realities; so they're going to blame somebody. And, like most human beings, they blame the messenger who delivered the bad news ... in this case, the courts. The analogies here are blaming high gas prices on the oil companies [who don'tcontrolcrude-oilprices]; or blaming inflation on retailers, labor unions,etc. [who don't control the money supply].

And naturally enough, they come up with an ideology that explains their loss was illegitimate. "Judicial usurpation", "states rights", whatever ... it all comes down to "we wuz robbed". [If Congress ever adopts a national abortion-rights statute, they'd complain about infringement on states' rights. And so on.]

But that's not what the social conservatives want to hear. So politicians assure these voters that they'll appoint judges who will reverse Roe vs.Wade [or whatever]. Yet somehow it never quite happens,since the politicians know very well that getting blamed for banning abortion [or whatever] would be electoral suicide.








ocialconser
5.22.2008 8:05am
Bored Lawyer:

Oh yes, forgot to mention the Boy Scouts case, another example in which the "conservative" position goes to court to try to reverse the effect of the political process.


Pure bunkum. The political process in New Jersey (where I come from) created the Law Against Discrimination -- which in pertinent part forbids discrimination on the basis of race, religion, etc. in "public accomodations." From the examples given, it is clear that the Legislature had in mind restaurants, places of entertainment, hotels, etc. In other words, the law was intended to make sure minorities had equal access to public commercial places -- a black could get a table in a restaurant, a Jew a night in a hotel.

It was the Courts who expanded the notion of "public accomodation" to include such groups as the Boy Scouts. The notion that the Legislature or the public would have supported a law that forced the Boy Scouts or any other youth group to accept a homosexual leader is fatuous.
5.22.2008 8:18am
Anon. Lib.:
I agree with p3731 and other posters above that your invocation of "conservative" versus liberal requires greater refinement. For the majority of the issues you've identified --- Brown, abortion, gay marriage, school prayer, flag burning --- as well as for court-driven changes in criminal law, the direction of the courts has been to reinforce individual rights and to diminish the coercive power of the state. I don't see how any of these trends should be objectionable to libertarian-conservatives. These changes are, obviously, opposed by traditionalist conservatives. Once you start to focus on traditionalist conservatives, the larger historical context comes into focus: these court-driven developments you've mentioned are part of a larger historical trend away from traditionalist views of American society --- i.e., the Civil Rights movement, the sexual revolution, the rights revolution, woman's liberation, etc. Its certainly not surprising that agents of those changes, such as the courts, would be disfavored by traditionalists who dislike those changes and vice-versa.
5.22.2008 8:38am
SteveW:
It would be interesting to know when the courts became an important issue in presidential elections. When the court issued the Loving decision in 1967, 70 percent of the population opposed interracial marriage, and when California became the first state to strike down a state anti-miscegenation law 20 years earlier, 90 percent of the population opposed interracial marriage. The percentage of the population opposed to interracial marriage in 1967 was higher than the percentage who oppose same sex marriage today. So interracial marriage should have been a big issue in the 1968 election. I know race (Nixon's "southern strategy") was an issue in the 1968 election, but I wonder if the courts, and Loving specifically, were an issue in that election.

My sense (guess) is that it is only in the last 20 to 25 years that the courts have become a motivating issue for many voters.
5.22.2008 8:39am
Capertree (mail):
I don't claim to speak for any conservatives other than myself, only as one who's greatest motivation (by far) in supporting McCain is his potential Supreme Court nominees. Whether I "like" a judge or not, depends on whether he upholds the integrity of the Constitution.
That begins by understanding that the purpose of the Constitution is to set limits on what the government may do. It is, in fact, a contract between the people and the government. Since a liberal philisophy seeks expansion of government, and a conservative philosophy desires the opposite, liberal judges are by nature very inclined to violate the spirit of the Constitution.
Therefore, when the liberal rulings violate protection of property rights (Kelo vs. Connecticut) or 1st Amendment rights (by upholding McCain-Feingold) the courts are acting in an illegitimate manner.
5.22.2008 9:08am
Tim Dowling (mail):
Snarky says: "Liberals may not prefer originalism. But they do not view conservatives who advocate it advocating something that is entirely illegitimate."

There are many people with VERY large microphones who routinely denounce originalism as not just entirely illegitimate, but as a thinly disguised effort to repeal the New Deal. Immediately prior to McCain's recent speech on judges, one group handed out a "translation guide" helpfully explaining that every McCain reference to the Founders was a secret "code" that means he will appoint radical extremists as judges. Such is the state of our public dialogue on the role of the Constitution and the courts in our society.
5.22.2008 9:09am
wfjag:

"If conservatives have their legal way, conservative-approved choices on those matters are mandated." not true at all. "If conservatives have their legal way, conservative-approved choices on those matters are" decided by other political bodies.


Stryker, are you implying that the federal courts are "political bodies"? [Oh Joe! Tell me it ain't so!}
5.22.2008 9:22am
Ben Kennedy:
"Conservatives" are not concerned by the fact that the lose, bur rather how they lose. Social conservatives and libertarians have one thing in common - when they lose in courts, it is usually due to decisions that have stepped beyond the original text. The decisions most annoying to this group generally extend from expansive interpretations of the Commerce Clause (Wickard), the 14th Amendment (Griswold, Roe), the establishment clause (10 Commandments cases), etc.
5.22.2008 9:25am
Serendipity:
Is the liberal view really "manadated," if liberals win? No one is REQUIRED to have an abortion, become an atheist, burn a flag, or become a homo, the liberal position simply permits people the ability to make those choices. The conservative position seems to be say that such choices ought not be permitted at all.
5.22.2008 9:31am
Ex parte McCardle:
A. Zarkov @ 6:21 this AM said, "Liberal[s] oppose even voluntary prayer in public schools."

That's ridiculous. What's offensive is "voluntary" prayer where the school official is the muezzin.
5.22.2008 9:45am
Ben P (mail):

Is the liberal view really "manadated," if liberals win? No one is REQUIRED to have an abortion, become an atheist, burn a flag, or become a homo, the liberal position simply permits people the ability to make those choices. The conservative position seems to be say that such choices ought not be permitted at all.


As long as 51% agree, which is the fundamental crux of this argument.

Each of those decisions promoted an individual right over a a "majority right."

The quote "conservative" position was that electoral majorities have an innate right to require electoral minorities to adhere to the majority viewpoint.

The quote "liberal" position was that there are certain areas where the majority cannot force the minority to conform.

The viewpoints on constutional theory is an interesting argument, and it does ring somewhat true. It is far more often originalists that I've remembered as asserting that there is only one legitimate way to interpret this, whereas the other side may or may not argue that.
5.22.2008 9:47am
BT:
While it may be true, at least according to this poll, that the typical liberal voter may not care about as much about the judiciary as conservatives do, don't tell that to their elected representatives. Remember what Ted Kennedy did to Bork? It's not only their proxies in congress but left wing groups like People For The American Way that get very active in trying to defeat conservative judicial nominees. They understand full well that the court system is a very important and effective tool in forwarding a left-liberal agenda. As others have stated above, my vote for McCain this fall(just as my vote for Bush in '04) will be based on possible SC vacancies, etc. God help us, excuse me, Allah helps us (I didn't mean to use a word offensive our liberal readers) if Obama is president.
5.22.2008 9:59am
Gordon DeSpain (mail):
I think that one must consider that most things a "Conservative" would object to (Constitutionally or Politically) could be considered abhorrent to the Human Race, or, antithetical to its continued existence.

Step back and ask yourself, "Where do Babies come from if they were not Fetus' before Birth?" Do you believe in Storks? If not, where do Babies come from? And, how do you justify murdering living Human Beings who are not yet capable of fighting for their lives, since it's Mothers who object to 'the Baby's' celebration of life as 'it' might be a constraint on the life of the Mother?

Was this mentioned in the Preamble to the "Declaration of Independence?"

Can murder be a valid vehicle to Fun and Happiness?

Does murder ensure the survival of minorities? Or, ensure their eventual demise?
5.22.2008 10:34am
Smallholder (mail) (www):
A Zarkov -

Liberals don't oppose voluntary prayer in schools. Kids can pray all they want - liberals just oppose it when teachers lead the prayer. Our high school has the Fellowship of Christian Athletes, student (not coach) led prayer before games, and lord knows, plent of prayers before my AP history tests. I don't think this ought to be a liberal/conservative position. Given that conservatives complain about the liberal bias of the academy, do they really want those same liberals leading prayer? I don't. I want my kids to pray the way our family does - not the way their liberal teacher or conservative teacher does.
5.22.2008 10:36am
one of many:

It would be interesting to know when the courts became an important issue in presidential elections.


I believe it was sometime between the first Adams administration and the Jefferson administration. You want to check out the Judiciary Act of 1801 (a hot button political issue), the impeachment of one S. Chase for being of the wrong political party and the 1804 presidential campaign (one of Pickney's major issues was Jefferson's judicial selections).
5.22.2008 10:43am
Allan (mail):
Another case where "conservatives" want to overrule the political process: 2nd Amendment (Heller).

Conservatives believe that they "lose" at the Supreme Court because they are brainwashed to believe it is true. Sort of like, after winning 10 football games by a score of 49 to 0, you think your defense is doing badly by giving up 28 points to the best offense in the league.
5.22.2008 10:46am
Justin (mail):
"whether to ban practices embraced by conservatives" is a weird way of discussing the abortion debate. I don't think it's necessary relevant to Orin's point, other than the fact that I think this "whether to ban practices embraced by conservatives" vs "whether to ban practices embraced by liberal" semantics is just that - its simply how one describes what's going on. The real issues is that conservatives perceive themselves as havign their politically-executed agenda struck down more frequently by the court than Democrats - although that is not actually true in a range of fields, including civil rights, the environment, campaign finance reform, and labor/worker safety issues.
5.22.2008 10:53am
Cornellian (mail):
Especially given the tendency of more 'conservative' judges to respect stare decisis even in cases where the decision is clearly wrong, while the 'liberal' judges have little respect for it.

Thomas is the only SCOTUS justice who doesn't believe in stare decisis, at all.
5.22.2008 11:09am
P Andrew (mail):
The counterexamples to Orin Kerr's thesis seem to be piling up — affirmative action, campaign finance reform, and other topics mentioned above are all "hot button" issues where it is the "conservatives" who want the courts to block the political process and not allow the "liberal" position to win.

And yet nobody has even yet mentioned that topic that is so dear to so many on this board — gun control! A liberal city decides to restrict guns, and conservatives go to court to outlaw the liberal policy position. I'm not saying conservatives are wrong to do so — I'm just saying that Kerr's hypothetisized asymmetry doesn't hold up. Conservative concern about courts has more to do with political pandering and speechmaking than it has a rational basis in reality.

[PS: As I'm about to post, I see that Allan just mentioned gun control. What a smart guy he is!]
5.22.2008 11:13am
Ben Kennedy:

Another case where "conservatives" want to overrule the political process: 2nd Amendment (Heller).


Of course conservatives want to overrule the political process, when the legislative and executive branches overstep their authority. Conservatives do not argue with the concept of judicial review, which is by definition "overruling the political process"

The charge that conservatives cherry pick their cases to achieve social conservative outcomes is false. In the majority of conservative causes, there is either a judicial overstep (Roe and friends) or a legislative overstep (Wickard, for one).

Every time the government does something that changes someone's decision, there is a loss of welfare. Of course there may also be gains in welfare in other areas, which is fine and good. It is the legislative function to make these tradeoffs, as this is the branch of government most accountable to the people.

The conservative complaint about the courts is twofold: first, the court makes unauthoried welfare tradeoff decisions by expanding interpretations of existing law. Second, the legislature makes welfare decisions they were not authorized to make, and the judicial branch goes along with it see the Controlled Substances Act.

The function of judicial review is interpret the decisions of the current legislature, and determine when the decisions of the current legislature conflict with previous super-majority approved legislation
5.22.2008 11:15am
LarryA (mail) (www):
The fact that Republican voters care a lot about the courts isn't exactly news. The question is, why is that true? Why are conservatives so focused on — so obsessed with — the courts?
I think you've nailed it. See the California gay marriage decision.
If you're unconvinced, consider some of the relatively uncommon hot-button cases when the usual valence is reversed. That is, consider a case asking the Court to ban a practice generally favored on the left.
D.C. v. Heller!
I will tell you why conservatives care so much more about the courts. Because they are dogmatic. They argue and believe that it is their way or the highway.
I know a lot of liberals who also fit this description.
I'm also not convinced if Constitutional issues are the only driving force. Here in Texas, the push by conservatives has been for tort reform and against "frivolous lawsuits."
Not Constitutional? You might want to review the Seventh Amendment.
It looks like Rasmussen asked respondents to identify the most important of three issues that might influence their vote for president in 2008: the war in Iraq, the economy, and judicial appointments. It's certainly possible to rank any of these highest and still think the others are pretty important.
It's also possible that all three of these issues are pretty far down on your list. There are other issues out there.
Liberal oppose even voluntary prayer in public schools.
That's a matter of definition. Liberals object to "voluntary prayer" when it's having an organized prayer at the beginning of class, but you can sit it out if you want. (And become a pariah.) Liberals have no problem with "voluntary prayer" when a student looks at an exam and says, "God, I wish I'd studied."
The percentage of the population opposed to interracial marriage in 1967 was higher than the percentage who oppose same sex marriage today. So interracial marriage should have been a big issue in the 1968 election. I know race (Nixon's "southern strategy") was an issue in the 1968 election, but I wonder if the courts, and Loving specifically, were an issue in that election.
I don't remember them being mentioned. The biggest issue in 1968 was getting out of Vietnam, second was the hippies taking over college campuses.
Is the liberal view really "manadated," if liberals win? No one is REQUIRED to have an abortion, become an atheist, burn a flag, or become a homo, the liberal position simply permits people the ability to make those choices. The conservative position seems to be say that such choices ought not be permitted at all.
So we aren't required to pay into Social Security, provide handicapped access, protect endangered species, or comply with gun control laws? Pot-->Kettle-->Black.
5.22.2008 11:19am
12345:
I agree that this discussion doesn't divide along lines of liberal vs. conservative, and I'm fairly tired of the use of this dichotomy altogether. And it's fairly obvious that the majority of people don't fit into these neat little groups like everyone wants to pretend, so how useful can they really be? I'm inclined to disregard any analysis/comments that assumes every "liberal" is a pot-smoking hippie and every "convervative" is an uptight church-going parent, which many of the above comments do. Its easy to use generalizations to make a point, but how about addressing the reality of the situation? That might actually get us somewhere and be helpful, rather than just a way to get people riled up and attract readers/viewers who argue until they are blue in the face and never really accomplish much.
5.22.2008 11:26am
Latinist:
P Andrew:
Gun control is also a case that nicely illustrates, in reverse, what Michael Mouse and others have been pointing out: you can see that as a case of "mandating" things for liberals and "permitting" things for conservatives if you look at it from the perspective of a lawmaker or voter. But from the perspective of a non-political actor, the conservatives just want the gun owner to be permitted to own a gun, while the liberals want to mandate that he not own one (if, as Stryker points out, that's the law that gets passed). Campaign finance is a similar issue: conservatives want people to be able to donate to candidates, liberals want to be able to restrict it. Abortion, flag burning, and gay marriage fall into the opposite category (conservatives want to be able to pass laws; liberals want to be able to have abortions, burn flags, and marry people of the same sex). So I'm not sure Orin's theory works, without further refinement; unless you think that people are more attached to their freedom to make laws than they are to their freedom to have abortions and get married. (The death penalty doesn't really fit into this scheme since there aren't really any individual non-political actors involved; school prayer is a little complicated, since a school, while bigger than an individual is usually a lot smaller than an electorate; and I have no idea how to fit in affirmative action.)
5.22.2008 11:35am
PLR:
When it comes to how they will vote in November, Republican voters say that the type of Supreme Court Justices a candidate would appoint is more important than the War in Iraq.

This kind of sentiment is how the old saying "Registered Republican voters are idiots" came into being.
5.22.2008 12:13pm
byomtov (mail):
As many others have pointed out, the distinction between "mandating" and "allowing" does not hold even a drop of water.

A pro-flag-burning decision does not mandate flag-burning. It allows it. School prayer decisions prevent schools from mandating prayer, directly or indirectly. Roe v. Wade does not mandate abortions, it allows them.

Similarly, but more complex, decisions dealing with sexual activities do not mandate practices conservatives dislike, they allow them.

I would say that, if anything, you have it backwards.
5.22.2008 12:15pm
cjwynes (mail):

Thomas is the only SCOTUS justice who doesn't believe in stare decisis, at all.


I don't think that's entirely accurate. That's basically true for how he views constitutional cases. But I'm not aware of him consistently ignoring stare decisis in, say, administrative law or federal statutory law.

I looked back at last year's case overturning the Dr. Miles rule, but he didn't file a concurrence there to give us any insight into what his standard is for when it is or is not appropriate to overturn a case outright in the area of federal statutory law. I'm not sure if he's ever expressed the standard he would have. But I know he has stated specific reasons for why he thinks the way he does about constitutional cases, and those reasons were peculiar to constitutional cases, and he strongly implied that they were limited to that context.
5.22.2008 12:17pm
Steve:
I think this is a very insightful post by Prof. Kerr. I'd add that conservatives have generally been much better at calling attention to judicial outrages, due to what I would characterize as better political savvy and infrastructure.

Some issues, of course, are big enough that everyone knows about the rulings no matter what anyone does. But something like Justice Kennedy's controversial practice of citing foreign law, for example, would be virtually unknown outside legal circles but for the conservative message machine calling attention to it and making sure the conservative base understands the issue.

By contrast, consider an example from the other side, like the Court's equal pay decision from last year. While the liberal interest groups are agitated over it, and the Democrats have tried to reverse it through legislation, the outrage hasn't found its way down to the grassroots level. Most Democratic voters know nothing about that decision and there's been no effort on the Democratic side, other than by specific interest groups among their membership, to mobilize the base and get voters energized about "taking back the Court" using issues like this.

The outrage is genuine on both sides, but at least in the last several decades, conservatives have been more effective at channeling it into a political movement and actual votes.
5.22.2008 12:19pm
Michelle Dulak Thomson (mail):
Re school prayer, I recall that at least some chapters of the ACLU opposed even a "moment of silence" at the opening of a school day, on the grounds that the obvious purpose of the moment of silence was the "opportunity for prayer." So it is not just the idea of teachers leading prayers that had some folks' knickers in a twist.

I think Orin has it basically right, but I'd add that having laws reflecting your policy preferences struck down as unconstitutional isn't painful merely because the change is harder to undo. If you regard the Constitution as the embodiment of the idea of "American-ness," such decisions amount to an official declaration that your views are, well, un-American. That smarts.
5.22.2008 12:29pm
Gypsy (mail):
Capertree,

I agree with you. McCain is not my idea of a freedom defending minuteman, but he will appoint judges who are not looking for landmarkism.

May he at least provide us with relief from judicial megamania and pork so think it is killing the middle class with more than clogged arteries.
5.22.2008 12:47pm
DangerMouse:
Nathan: "many conservatives are convinced that the courts are illegitimate, left-wing, institutions. This impression is reinforced with every decision conservatives don't like, so many people will blame "activist judges" even for predictable ruling such as Kelo.

The courts ARE left-wing institutions. They are packed with liberal elites who lean nothing but relativism at law school and don't give a crap about the values our forefathers embedded into the Constitution. Liberal judges will stop at nothing to read their own views into the Constitution and then try to hide their illegitimate actions by copying a brief afterwards and using it as their "opinion." Even so-called "moderate" Republican judges have accepted the Court's power-grab over democratic life in this country and are routinely comfortable with making political decisions that should never be brought to the court in a sane society.

I think Orin generally is correct in his post, that the Court cases have all been about mandating liberal preferences but outlawing conservative preferences. It is unconstitutional to vote on whether to permit abortion, abortion is mandated. It is unconstitutional to pray in school if you're a teacher (only athiests need apply). It is (or soon will be) unconstitutional write a law saying marriage has always been and should be between a man and a woman. It is unconstitutional to have the death penalty, and liberal judges make no bones about their desire to overturn it at every instance.

Moreover, I do think that so-called "living Constitutionalism" is fundamentally and wholly illegitimate, and a naked power grab designed to destroy democracy and render liberal preferences as absolute without requiring any democratic input. Liberal victories on the courts are used to avoid the messy process of actually trying to convince voters of preferences. Abortion, homosexual "marriage," and school prayer have been accomplished this way. No doubt many liberals pine to outlaw gun ownership, what's left of private property (after Wicard), and further drive the rest of the practicing Christians back into the catacombs.

Every day, another case is authored which pounds the message into American heads that the Courts are our Masters and that THEIR will is law, not those of the elected or the electorate. And it just so happens that the will being enacted is all of liberal preferences. I agree with the sentiment that while a conservative preferences might not lose, it never wins, and a liberal preferences might not win, it never loses.
5.22.2008 12:49pm
OrinKerr:
There are some good comments here, and some comments that are missing the point.

To take one that I think misses the point, the question raised by whether a rule is mandated or allowed goes to whether *the legal rule* is mandated or allowed, not whether the conduct itself is mandated or allowed. If I like to play my music loud at night, and the city enacts an ordinance saying I can't, a court decision striking down the ordinance mandates the state of the law: As between the choice of having a noise ordinance and not having a noise ordinance, the legal rule is mandated by the courts.

Perhaps this was unclear in my post, but I think it's actually a pretty simple concept. If you think it's unclear in my post, let me know and I'll amend the post to make it clearer.
5.22.2008 1:21pm
DangerMouse:
Perhaps this was unclear in my post, but I think it's actually a pretty simple concept. If you think it's unclear in my post, let me know and I'll amend the post to make it clearer.

I thought it was pretty clear. I think people who are reading it otherwise are intentionally being disingenuous.
5.22.2008 1:23pm
CrosbyBird:
To take one that I think misses the point, the question raised by whether a rule is mandated or allowed goes to whether *the legal rule* is mandated or allowed, not whether the conduct itself is mandated or allowed. If I like to play my music loud at night, and the city enacts an ordinance saying I can't, a court decision striking down the ordinance mandates the state of the law: As between the choice of having a noise ordinance and not having a noise ordinance, the legal rule is mandated by the courts.


After reading this post, and re-reading the original post, I get what you are saying, but it wasn't clear to me beforehand. Certainly it wasn't a deliberate misreading.

The problem is that it is unnatural to be wholly conservative or wholly liberal. People tend to be conservative on issues where the status quo is representative of their values, and liberal on issues where the status quo is not.

Is Gonzales v. Raich a conservative or a liberal decision? It a liberal application of the Commerce Clause but a socially conservative result, no?

The "hot-button" issues are not fundamental conflict between those who say "courts are better" and those who say "majority is better." They are fundamental conflicts between those who say "X should not be permitted" and those who say "X should not be prohibited."
5.22.2008 1:50pm
LarryA (mail) (www):
As many others have pointed out, the distinction between "mandating" and "allowing" does not hold even a drop of water.
Actually, it does. Whether you talk about "liberals" v. "conservatives" or Republicans v. Democrats both sides have a long list of activities they want to mandate or prohibit, and another list of activities they want to keep free of mandates or prohibitions. Two recent high-profile cases nicely illustrate this: Gay marriage in the California Supreme Court and gun rights in SCOTUS.

Democrats/"liberals" are outraged that they can't prohibit guns, but pleased that prohibiting gay marriage has been overturned.

Republicans/"conservatives" are outraged that they can't prohibit gay marriage, but pleased that prohibiting guns has (hopefully) been overturned.

The only folks who are truly against mandates and prohibitions are us libertarians, who are happy about both decisions.

Well, and the Pink Pistols.
5.22.2008 1:55pm
ba2 (mail):
conservatives understand two things that libertarians don't: people usually become what they were raised to be (by parents and the community) and the law is an omnipresent teacher. conservatives don't want the court to create laws that have bad influences on them or their children.
5.22.2008 2:43pm
Justin (mail):
"Perhaps this was unclear in my post, but I think it's actually a pretty simple concept. If you think it's unclear in my post, let me know and I'll amend the post to make it clearer."

Sure, its a simple context. It was even more simply made in my comment: "The real issues is that conservatives perceive themselves as havign their politically-executed agenda struck down more frequently by the court than Democrats - although that is not actually true in a range of fields, including civil rights, the environment, campaign finance reform, and labor/worker safety issues."

The problem isn't the point - which is simple but boring - but the gloss you tried to put on it - that this was about freedom rather than the long-ago-tired battle over "judicial activism" in its most general and rhetorical form.

You also carefully give your argument a gloss to avoid situations - very common in the civil rights/environment/labor/regulatory fields - where liberals heavily focused their efforts on achieving a major political win, only to have that political win "interpreted away" from them in major decisions such as Sandoval and Garret. Remember, the political hurdles for enacting prophylactic legislation is fairly high - it needs to pass the house, pass the senate with 60 votes, and be signed by the President. The difference between "never" and "you have to do it again and again because you didn't use the magic words" tends, in the end, to often be a difference of little practical import.
5.22.2008 3:18pm
Justin (mail):
Errr concept, not context.
5.22.2008 3:24pm
NickM (mail) (www):
Heller doesn't count as a counterexample unless and until the Supreme Court rules in the respondents' favor.

As for campaign finance reform, has anyone told the ACLU that liberals are supposed to favor it? Seriously, that has always been an issue of miniscule concern to voters, and those who do care about it are normally motivated by whether they feel it will help or hurt their political/legislative agenda if it passes.


Nick
5.22.2008 4:39pm
Mary Katherine Day-Petrano (mail):
This is a faux issue. ]

While the Conservatives are running around thumping their chests like Tarzan about "How much McCain cares about the Courts" (the mice will play when the cat's away), Obama is doing his civil duty and Honor to stand in for Senator Kennedy at Wesleyan. here

NOW who looks more Presidential and has the class to care about the type of Judges and Justices confirmed to our Courts?
5.22.2008 5:34pm
LM (mail):
DangerMouse

The courts ARE left-wing institutions. They are packed with liberal elites who lean nothing but relativism at law school and don't give a crap about the values our forefathers embedded into the Constitution.

Seven of the nine SCOTUS Justices are Republican appointees. I believe only two self-identify as Democratic or liberal. And correct me if I'm wrong, but aren't most federal circuit and district court judges Republicans? (I have no idea about state and local judges.)

I thought it was pretty clear. I think people who are reading it otherwise are intentionally being disingenuous.

What's your evidence for that opinion?
5.22.2008 5:43pm
Aleks:
Re: For liberals, the key question usually has been whether the courts will mandate their views, not whether the courts will allow them.


Nonsense. Abortion has not been "mandated. Neither has homosexuality. (I'll leave the death penalty out of this since it's a very different beast). And when has it been made mandatory to burn flags? And as for prayer in schools isn't that the other side trying to force sonmething on everyone else?
What the liberal social issues decisions have done is get the government out of the mix entirely, allowing individuals to make up their own minds about personal behavior. If you oppose abortion, don't have one. If you believe homosexuality is immoral, don't do it. On many of these issues there's no reason we need a "one size fits all" policy, and social conservatives are perfectly free to live according to their own wisdom, just not to impose themselves in others.
5.22.2008 5:47pm
LM (mail):
Aleks,

It's all a matter of how you frame the question. Orin addressed this @ 12:21.
5.22.2008 6:37pm
Doc Rampage (mail) (www):
Orin, I think that your suggestion does not take seriously enough what conservatives themselves say about the court decisions. My problem with the court decisions you name is not just that they were wrongly decided, but that the way that they were decided was unconstitutional and undemocratic. The Constitution spells out the ways in which the Constitution may be amended, and it does not include "majority vote of the Supreme Court". Conservatives are concerned about this in large part because of the danger it poses to our democratic system of government that the government can ignore the system of rules (the Constitution) put in place to control the government.

Now of course, it matters that the courts seem to be controlled by people who want to use this power in opposition to conservative goals. No doubt, if the power were being used to support conservative goals, the conservatives in general would find it a lot less concern-worthy, just as liberals do now. They might even try to rationalize the practice by reference to a "living Constitution". Then the liberals would be the ones who see the danger in giving the Supreme Court dictatorial powers over all governments in the United States.

In all the examples you gave, I don't think any of them opposed the liberal position by way of finding an entirely new right in the constitution such as the right to abortion or the right to sodomy. If the proponents of such rights wanted them in the Constitution, the proper process was the constitutional-amendment process, not a dictatorial position by five justices. Conservatives would have been unhappy if such a process succeeded, but it would not have created the anger that the actual process created. Being defeated by blatant cheating is a lot worse than just being defeated.
5.22.2008 7:16pm
LM (mail):

Now of course, it matters that the courts seem to be controlled by people who want to use this power in opposition to conservative goals.

Again, which (at least federal) courts are dominated by liberals?
5.22.2008 7:51pm
steingra:
All groups are motivated to find scapegoats for their losses, and all groups self-motivate by whining about the decisions they've lost.

This blog is full of posts about "liberal" over-reaching in the courts, arrests, etc. Other blogs are full of posts about the exact opposite, the football coach who did a prayer before a game, the teacher who mentioned evolution in class, etc.

We all want to make a case for being the underdog, the one who isn't getting a fair shake, etc. For republicans, social conservatives, and the like, the courts are the place they've had a theoretically bad time of it lately. Sure, since 1994 they owned the house. Sure they took over a ton of governships and state legislatures. But, you can't fundraise if you can't get people all worked up, and court decisions are the places where these folks can get all worked up about their losses.

Democrats, social liberals, etc. aren't generally all worked up about court decisions. They are worked up about pro-evolution laws, about school boards pushing creationism into schools, about discrimination against same-sex couples. This helps them fundraise with these groups.

Does this poll seriously surprise you? Without some perceived injustice to rally against who the hell would give money, turn out to vote, and so on?

Maybe this is at least slightly why Obama is having a good go of it this year in this department, because he's managing to reach at least a few of the people who don't really want to get worked up about all of the perceived injustice against their causes and instead want to get something done on the positive side for a change?

This isn't to say he's right, or that lots of people aren't backing him for the wrong of goofy reasons, but merely that the two causes he seems to rail publicly against are the war, and the silliness of the american political system.
5.25.2008 8:56pm