Clint Bolick, co-founder of the Institute for Justice, has been serving on Arizona’s Supreme Court since his 2016 appointment by Governor Ducey. His tenure so far has yielded opinions staunchly defending the rights of the accused and protecting property rights against corporate overreach. His jurisprudence is consistent, and one would think that the respect for civil rights it enshrines would be welcome across the spectrum. However, activists have come out in force to try to unseat him in tomorrow’s election, out of anger at a single ruling. (A few have pushed for the ouster of Justice Pelander as well, but the focus has been on Justice Bolick.)
The ruling in question removed a ballot initiative, which would have generated a new tax revenue stream for education, due to its vague and misleading language. The activists, funded by the National Education Association, charge that the ruling was actually driven by Bolick’s libertarian politics. But this view consciously ignores the facts. For one thing, the ruling was 5-2 against the ballot measure, meaning that Bolick’s presence or lack thereof made no difference. For for another, Justice Bolick has often voted to uphold ballot initiatives and policies which run directly counter to his own political philosophy.
As a textualist, Bolick interprets the law according to the wording of the Constitution. There are differences of opinion within this framework, to be sure, but it upholds the rule of law over the personal policy preferences of judges. As a result, sometimes rulings will seem favorable to liberals and at other times favorable to conservatives.
A consistent commitment to the rule of law is in everybody’s interest. It is a mistake to view this philosophy as a conservative one, though it is often treated as such. For the law to function, it needs to apply in the same way to all people, and this principle secures the public not only against arbitrary rules, but against police misconduct as well. Liberals should consider this carefully in weighing their opposition to Justice Bolick.