Archive | Conservatism

University of Chicago Law Review Symposium on the Work of Judge Robert Bork

The University of Chicago Law Review recently posted its online symposium on the work of Judge Robert Bork, who passed away last year. The symposium includes essays by several prominent legal scholars, including Steven Calabresi, Bradford Clark, Richard Epstein, John Harrison, Kurt Lash, John McGinnis, and John Yoo. My own contribution, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” is available here. Here is a summary adapted from the Introduction:

As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing. But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Yet it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer. The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy. We could call the trade-off between the two the “Borkean dilemma.”

Part I of this Essay briefly outlines Bork’s well-known commitments to both originalism and judicial deference to the democratic process. Part II discusses his failure to resolve the potential contradiction between the two. In Part III, I explain why the tension between originalism and deference has become an increasingly serious problem for originalists and briefly consider some possible ways to resolve, or at least minimize, the contradiction. Some of these theories have potential, especially the idea that many types of judicial review might actually promote rather than undermine popular control of government. Ultimately, however, none of them comes close to fully resolving the conflict between originalism and

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Ian Millhiser on Me, the Federalist Society, and “Judicial Activism”

Ian Milhiser at ThinkProgress has written an article on the recently concluded Federalist Society National Convention, where he claims it shows that conservatives have embraced wideranging “judicial activism.” He also includes a summary of a discussion he had with me, at the convention. The summary is accurate in so far as it goes, but omits crucial context:

My sparring partner during much of this closing reception for the Federalist Society’s annual lawyer’s convention, is Ilya Somin, who is a law professor and writer for the Volokh Conspiracy, a popular legal blog that thousands of lawyers, law clerks and judges read every day. As Ilya lays out Social Security’s supposed vices, I wonder if his readers are aware of the breadth of his agenda. I also chide him that voters would have an easy time making up their minds if Republicans campaigned openly on promises to abolish child labor laws and kill Medicare, but he is completely unapologetic for his beliefs. This is not a man who pretends to care about the poor and the middle class in order to sell policies that will lower his own taxes. I leave the reception convinced that he sincerely believes that America’s poor would be better off if they only embraced his vision for a libertarian utopia.

Ilya’s views are not universal, but they are hardly unusual at this gathering of what is arguably the most powerful legal organization in the country.

I did indeed say that I oppose Social Security. This is hardly an unusual position for free market advocates. Milton Friedman and most other leading libertarian economists have advocated the same view, as have many pro-free market conservatives, from Barry Goldwater to Ronald Reagan. Even a big government conservative, such as George W. Bush, proposed a plan to privatize large parts of [...]

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Are Conservative Judges Better? Evidence from Geoff Stone

Prof. Geoff Stone argues that conservative Supreme Court justices are more ideologically inflexible and less meritocratic than their liberal counterparts. His evidence for this is that

Of the 20 law clerks appointed this Term by the five conservative Justices — Roberts, Scalia, Kennedy, Thomas and Alito, 18 of the 20 — or an astonishing 90 percent — clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices — Ginsburg, Breyer, Sotomayor and Kagan, only 9 of the 16 — or 56 percent — clerked last year for a Democratic-appointed judge.

I would not rest any theory on this information, but if I would, it could easily support quite different explanations.

1) Given that the court picks clerks every year, data from one year is not very interesting; there are no doubt fluctuations. Any serious discussion of the issue would require looking across a period of year. I understand Stone may not have wanted to this – any more than I do – but then it is probably not fair to say one year’s hiring “shows” anything. Prof. Brian Leiter surprisingly calls this “hiring patterns,” but I don’t see how one year can be a pattern.

Indeed, the numbers Stone cites sound impressive in terms of percentages, but are really just a difference of a few clerks. Stone admits this is just a “tidbit,” but then goes on to say it “reveals… what is really going on.”

2) Now assuming this “pattern” is true, one possible explanation is that there is more conservative-to-liberal drift on the bench than vice versa. Thus there are more Republican-appointed judges with liberal tendencies than vice-versa.

3) Perhaps Stone should have called his article “The difference between conservative and liberal JUDGES.” The relatively [...]

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The Problem of Confusing Political Terminology

Co-blogger Eugene Volokh’s excellent post on the sometimes confusing multiple meanings of the word “Jew” call to mind similar confusions in political terminology. For example, the term “conservative” is routinely used to refer to 1) people who are in some sense on the political right, 2) people who oppose changes in the status quo, 3) people who are willing to accept gradual change but not rapid change (e.g. – Burkean conservatives), and 4) people who want to return to the government policies or moral values of a bygone age. The fourth group might be more precisely referred to as “reactionary,” but the word “conservative” is often used to describe them instead, in part because “reactionary” has a pejorative connotation. Because of these multiple meanings, we get situations such as the Western media referring to communists who opposed Mikhail Gorbachev’s reforms as “conservatives.” These people were conservative in the sense of meaning 2, but obviously not in the sense of meaning 1.

In many cases, it’s possible to tell which sense of the word “conservative” is meant by context. But sometimes, pundits, politicans, and activists deliberately exploit the ambiguities, as when they act as if people who are conservatives in the sense of 2 are basically the same as those in who are conservative in the sense of 1 or 4. Alternatively, people sometimes try to score debating points by claiming, for example, that people who want to cut back or restructure long-established entitlement programs can’t be “real” conservatives, because what they advocate requires major changes to the status quo. They can still be conservatives in the sense of 1 or 3 (if they advocate gradual rather than immediate restructuring of the programs in question).

There is a similar, but less severe, confusion in the use of the term “libertarian.” The [...]

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Is there a Generational Divide over “Judicial Restraint” Between Reaganites and Libertarians?

Various commentators such as Garrett Epps, Mark Tushnet, and recent guest-blogger Josh Blackman argue that there is a generational divide among right of center jurists between Reaganite advocates of “judicial restraint” and later, more libertarian figures who are less willing to defer to legislatures and more eager to strike down laws they consider unconstitutional. They argue that this divide is exemplified by the the Supreme Court’s decision in NFIB v. Sebelius, where Chief Justice John Roberts voted to uphold the individual health insurance mandate as a tax, while other conservative justices voted to strike it down. As Epps puts it, Roberts voted the way he did because “his is the conservatism of the 1980s rather than the new, more aggressive version minted for the Age of Obama.” As a veteran of the Reagan-era Justice Department, Roberts supposedly imbibed the ideology of judicial restraint, from which later conservatives have departed.

I. Federalism and Reagan’s Judicial Appointees.

This thesis fundamentally misconceives the dominant constitutional vision of the Reagan administration and most of the jurists associated with it. In the individual mandate case, both of the actual Reagan appointees still on the Court – Justices Antonin Scalia and Anthony Kennedy – voted to strike down the law. If they had still been on the Court, Reagan’s two other appointees, Sandra Day O’Connor and William Rehnquist (whom Reagan promoted to Chief Justice), would likely have voted the same way, based on their longstanding advocacy of strong judicial enforcement of limits on federal power and their dissents in Gonzales v. Raich (in which case Scalia and Kennedy voted to uphold the law).

Reagan also nominated numerous leading libertarians and pro-federalism conservatives to the lower courts, including such well-known libertarian and libertarian-leaning jurists as Alex Koziniski, Douglas Ginsburg, Stephen Williams, Jerry Smith, and [...]

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Dick Cheney Unintentionally Explains the Dangers of the NSA Surveillance Program

In this recent article, conservative columnist John Fund highlights some interesting comments by former Vice President Dick Cheney:

On Sunday, former vice president Dick Cheney addressed the dilemma many conservatives face in assessing the revelations about the National Security Agency’s data collection. On the one hand, they are suspicious of the federal government. On the other, they often mute such concerns when it comes to anything touching on national security.

Cheney captured the tension perfectly in defending the NSA’s activities. Fox News Sunday’s Chris Wallace first asked him: “What right do you think the American people have to know what the government is doing?” After a pause, Cheney said: “Well, they get to choose, they get to vote for senior officials, like the president of the United States or like the senior officials in Congress. And you have to have some trust in them….”

Later in the interview, Wallace asked Cheney for his opinion of President Obama. “I don’t think he has credibility,” he said. “I think one of the biggest problems we have is, we have got an important point where the president of the United States ought to be able to stand up and say, ‘This is a righteous program, it is a good program, it is saving American lives, and I support it.’ And the problem is the guy has failed to be forthright and honest and credible on things like Benghazi and the IRS. So he’s got no credibility.” If we are to rely on the people elected to high office not to abuse their authority, what do we do when they do exactly that — as Cheney thinks Obama has?

So Cheney’s view is that the NSA program is justified because we should trust “senior officials, like the president of the United States.” But [...]

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Political Profiling and Racial Profiling

Slate columnist Farhad Manjoo has an interesting article arguing that conservatives are right to complain about the IRS’ use of political profiling, but argues that they should use the same reasoning to rethink their support for racial profiling in law enforcement. As he points out the IRS justification for political profiling is very similar to standard arguments for racial profiling in combatting terrorism and crime:

Pretend you work at the Internal Revenue Service… Every day, a big stack of files lands on your desk…. Each file represents a new application for a certain tax status—501(c)(4), a tax-exempt designation meant for “social welfare” organizations. Nonprofits with this status aren’t required to disclose the identity of their donors and they’re allowed to lobby legislative officials. The catch is that they must limit their political campaign activity….

It’s your job to decide which 501(c)(4) applications represent legitimate social-welfare organizations, and which ones are from groups trying to hide their campaign activities. What’s more, you’ve got to sort the good from the bad very quickly, as you’re being inundated with applications….

So what do you do? You look for a shortcut. Someone at your office notices that a lot of the applications for 501(c)(4) status are from groups that claim to be part of the burgeoning Tea Party movement. Aha! When you’re looking for signs of political activity, wouldn’t it make sense to search for criteria related to the largest new political movement of our times? So that’s what you do…

[T]here’s a name for the kind of shortcut that the IRS’s Cincinnati office used to pick out applications for greater scrutiny: “profiling.” By using superficial characteristics—groups’ names or mission statements—to determine whether they should be subject to deeper investigation, the IRS was acting like the TSA agent who pulls aside the guy in

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Upcoming George Mason University Panel on the Tea Party and Voter Rationality

On Monday April 1, I will be speaking at a George Mason University School of Law panel on the Tea Party movement and voter rationality. Lots of data show that voters are often ignorant about politics and highly biased in their evaluation of the information they do know. The panel will focus on the extent to which Tea Party supporters are better than other voters on these dimensions, worse, or roughly the same.

Also participating in the event are co-blogger Todd Zywicki (who is a prominent academic expert on public choice theory), and Matt Kibbe of Freedomworks, one of the leading organizations associated with the Tea Party Movement). The panel will be held at George Mason Law School from noon to 1 PM in Room 222. It is sponsored by the GMU Federalist Society.

I have written about the Tea Party movement and political ignorance in this article, and here. My general take is that Tea Party supporters probably have higher political knowledge levels than the average voter because they have higher-than-average education and interest in politics (two strong predictors of political knowledge). However, as I discuss in my article linked above, they are far from free of the ignorance and political bias that are common across the political spectrum. For example, I cited surveys showing that “birtherism” is much more widespread among Tea Party supporters than among the public as a whole. This is part of a general pattern in which committed partisans are more likely to fall for myths that conform to their preexisting biases. [...]

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Judicial Nominations and Competing Constitutional “Mainstreams”

In a recent column, Harvard Law Professor Cass Sunstein argues that Republican senators who have filibustered some of Barack Obama’s judicial nominees are more to blame than Democrats who previously filibustered GOP nominees because the Democrats only tried to block nominees who were “out of the mainstream,” while the GOP targeted any nominees whom they “strongly disagree” with on constitutional issues. Sunstein does recognize that “Senate Democrats deserve a fair share of the blame for this dismal situation” because “their use of the out-of-the-mainstream test sometimes veered disturbingly close to the disagreement test.” But he claims that the GOP has gone further than the Democrats did.

Sunstein’s critique is overdrawn. If the Republicans really tried to filibuster any Obama nominees with whom they have strong disagreements, they would have filibustered virtually all of them, not just a few. In reality, they have targeted nominees who they thought were even more liberal than the average nominees put up by a Democratic administration and/or had a “paper trail” that made them unusually vulnerable to attack. Democrats pursued a similar strategy during recent Republican administrations.

Most of the nominees that Democrats aggressively opposed during the Reagan, Bush I, and Bush II administrations were well within the mainstream of modern conservative constitutional thought. That was certainly true of high-profile cases such as Miguel Estrada and Peter Keisler. Similarly, most of the Democratic nominees targeted by Republicans under Clinton or Obama were well within the mainstream of modern liberal constitutional theory.

The underlying reality here is that there is a deep chasm between mainstream conservative views on constitutional interpretation and mainstream liberal ones. The standard-issue conservative Republican jurist believes that the Constitution provides extensive protection for gun rights and property rights, that the courts should enforce significant federalism-based constraints on Congress’ powers, that all [...]

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A “Conservative Vision” for the Future of Environmental Policy

Last fall, I participated in a conference at Duke Law School on “Conservative Visions of Our Environmental Future,” sponsored by the Duke Environmental Law and Policy Forum, Nicholas Institute for Environmental Policy Solutions, Nicholas School for the Environment, Duke Federalist Society, Duke College Republicans and the Energy & Enterprise Initiative.   I blogged the event, summarizing the various talks as they occurred, save for my own. (It’s a bit hard to talk and type at the same time.)

A brief paper, summarizing my remarks, is now on SSRN.  Here’s the abstract:

The existing environmental regulatory architecture, largely erected in the 1970s, is outdated and ill-suited to address contemporary environmental concerns. Any debate on the future of environmental protection, if it is to be meaningful, must span the political spectrum. Yet there is little engagement in the substance of environmental policy from the political right. Conservatives have largely failed to consider how the nation’s environmental goals may be best achieved. Perhaps as a consequence, the general premises underlying existing environmental laws have gone unchallenged and few meaningful reforms have proposed, let alone adopted. This essay, prepared for the Duke Law School conference on “Conservative Visions of Our Environmental Future,” represents a small effort to fill this void. Specifically, this essay briefly outlines a conservative alternative to the conventional environmental paradigm. After surveying contemporary conservative approaches to environmental policies, it briefly sketches some problems with the conventional environmental paradigm, particularly its emphasis on prescriptive regulation and the centralization of regulatory authority in the hands of the federal government. The essay then concludes with a summary of several environmental principles that could provide the basis for a conservative alternative to conventional environmental policies. 

This paper will be published along with other papers from the conference in a symposium issue of the  [...]

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Huntsman Endorses Gay Marriage

Former Utah Governor Jon Huntsman endorses gay marriage in The American Conservative. Here’s a bit of his argument:

All Americans should be treated equally by the law, whether they marry in a church, another religious institution, or a town hall. This does not mean that any religious group would be forced by the state to recognize relationships that run counter to their conscience. Civil equality is compatible with, and indeed promotes, freedom of conscience.

Marriage is not an issue that people rationalize through the abstract lens of the law; rather it is something understood emotionally through one’s own experience with family, neighbors, and friends. The party of Lincoln should stand with our best tradition of equality and support full civil marriage for all Americans.

This is both the right thing to do and will better allow us to confront the real choice our country is facing: a choice between the Founders’ vision of a limited government that empowers free markets, with a level playing field giving opportunity to all, and a world of crony capitalism and rent-seeking by the most powerful economic interests.

I agree with Huntsman’s take, in particular his suggestion that the issue of same-sex marriage is “not an issue that people rationalize through the abstract lens of the law.”  This is one of the reasons it’s such a difficult issue for the courts.

There are powerful policy arguments for recognizing same-sex marriages.  As my co-blogger Dale Carpenter has shown, there is even a strong prudential conservative case for allowing same-sex couples to marry.  Yet the legal arguments that recognition of same-sex marriage is constitutionally compelled are not nearly so compelling.  As I see it, the ultimate issue is the definition of marriage — whether the state may define the institution as a union of a man [...]

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A Changing GOP Position on Immigration?

It was interesting to see that both Marco Rubio in his official Republican response to President Obama’s State of the Union and libertarian-leaning Senator Rand Paul in the Tea Party response argued for a less restrictive immigration policy. This is an important development for a party whose conservative wing has long been known for its support of restrictionism.

Rubio restated his longstanding support for expanding legal immigration and at least some regularization of the status of the illegal immigrants already here. The notable development here is not that he said it, but that it was embodied in the GOP’s official response to the President.

Paul actually went further than Rubio, advocating a much broader pro-immigrant stance:

We are the party that embraces hard work and ingenuity, therefore we must be the party that embraces the immigrant who wants to come to America for a better future.

We must be the party who sees immigrants as assets, not liabilities.

We must be the party that says, “If you want to work, if you want to become an American, we welcome you.”

Taken literally, this suggests a policy of open borders for anyone who “want[s] to work” and “become an American.” Most likely, Paul did not intend to go that far. But it’s still a pretty strong statement, reminiscent of Ronald Reagan’s 1989 farewell address, where he called for an America “open to anyone with the will and the heart to get here.” And unlike both Rubio and President Obama in the State of the Union, Paul did not couple this call for increased immigration with a call for increased border enforcement.

It is significant that this sentiment was included in a speech billed as the official Tea Party response to the State of the Union. Although the Tea Party is [...]

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