Bench Memos

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Re: See Spot Run. See Joan Write.


I readily concede that I have little patience with biased and mediocre reporting like Joan Biskupic’s USA Today article yesterday.  But let me explain more fully, and more neutrally, why her political labeling of justices is so deficient.

Some sort of political labeling of justices is convenient and perhaps even inevitable, at least as a crude shorthand.  I can discern three different approaches that are at least defensible:

1.  One approach, which might be called the political scientist’s or realist’s approach, would focus entirely on the results that justices reach (because that is all that is of interest to some political scientists or because the realist believes that the rhetoric of judging merely cloaks the imposition of one’s own policy preferences).  Under this approach, a position in favor of creating or recognizing a liberal constitutional right would reasonably be labeled liberal; a ruling in favor of creating or recognizing a conservative constitutional right would reasonably be labeled conservative; and a position in opposition to either of these—the position, in other words, that the matter is left to the legislative processes for decision—would reasonably be labeled moderate.

Under this taxonomy, for example, those who maintain that the Constitution protects a right to abortion would take the liberal position; those who maintain that the Constitution protects a right to life (and prohibits permissive abortion laws) would take the conservative position; and those who maintain that the Constitution does not create any general rights, one way or the other, on abortion would be labeled moderates.  (Again, my NRO essay explains this more fully.)

If this taxonomy is applied to the bulk of hotly contested issues (including, say, same-sex marriage and other issues involving homosexuality, regulation of obscenity, the death penalty, and the Establishment Clause), it yields the conclusion that the so-called extreme conservatives on the Court are actually moderates and the so-called moderate conservatives are liberals.

To be sure, there are some other issues (takings and racial preferences, to name a couple) where, from a pure results-oriented analysis, the taxonomy would apply differently (if, that is, the traditionally liberal principle that governmental benefits should not be awarded on the basis of race is now a conservative position).  The so-called liberals on the Court would be moderates on these issues (since they maintain that individual rights do not significantly constrain governmental action on these matters), and the oft-described conservatives would in fact fairly be labeled conservative.

2.  A second approach might focus on the political associations of those who favor one of the competing methodological approaches to the Constitution.  This approach would expressly acknowledge that (at least in the particular circumstances of the past several decades) the freestyle make-it-up-as-you-go-along approach commonly labeled the “living Constitution” is generally favored by political liberals, whereas original-meaning jurisprudence and/or principles of judicial restraint have their primary support among political conservatives. 

3.  A third approach would adopt a particular constitutional methodology as the correct one and examine over a broad set of cases whether and in which political direction justices deviated from the results that should have been reached.  Justices who deviated frequently toward more liberal results would be labeled liberals, and justices who deviated frequently toward more conservative results would be labeled conservatives. 

Perhaps there are other approaches that would also be defensible.  Suffice it to say, for present purposes, that Biskupic plainly did not adopt, and did not purport to adopt, any of these approaches.  If she had done so, I don’t see how she could have come up with the labels that she did (including the assertion that Justice O’Connor was a “moderate” who “generally was conservative”).  It would seem, rather, that she used what I will call the conventional liberal reporter’s taxonomy:  Anyone who consistently reaches results that I (the liberal reporter) like is a liberal or a moderate liberal; anyone who consistently reaches results I don’t like is a conservative (and harsh and mean and bristling and fierce); and anyone who abandons the conservatives on key issues but who still can’t be counted on across the board earns the coveted label “moderate” as encouragement to do better.

Tags: Whelan


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