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Friday, November 04, 2005
Conservative Jurisprudence

Valid social science concepts must possess a characteristic named "operationalizability." That clunky term simply means: How do we know a concept when we see it? How can we distinguish this concept from other related concepts?

Washington Post columnist Michael Kinsely, What's Too Conservative?
, operationalizes the "conservative" in conservative jurisprudence for us in helpful ways. His goal is to outline when someone might be considered too conservative for the Supreme Court. To do this, he outlines three types of judicial conservatism that might appear in a nominee or a judge. His clear framing of the issue provides the readers with an avenue for a political response to judicial conservatism. In each of the sections below I will quote Kinsely's helpful formulation and offer reasons why we should reject judicial conservatism on principle.

(1) "First, conservatism can mean a deep respect for precedent and a reluctance to reverse established doctrines. All judges are supposed to be bound by precedent, and it's a bit of a mystery when and why they feel empowered to change course. But this meaning of conservatism is mainly advanced by liberals, who like the idea that conservatism itself will stay the hand of conservative judges in reversing great liberal precedents....But recent Supreme Court nominees have found that asserting a deep respect for precedent is a great way to reassure senators that they won't overturn Roe, whatever they might think of it on the merits and whatever they actually intend."

This type of conservatism is probably the best type we could hope for from a judge lauded as conservative. This, however, is one of those examples when the best is simply not good enough. Respecting key "liberal" precedents is good. However, if not directly overturning a decision, in the name of stare decisis (let the decision stand), is simply a cover for slowly narrowing the reading of a past case over time, then we have gained little. Yale law professor Jack Balkin warns us that the conservative movement's embrace of the concept "super stare decisis", a term that Senate Judiciary Chairman Arlen Specter invoked a number of times in the Roberts hearing, will allow institutional and precedent conservatives to narrow without overturning cornerstone decisions in American law.
People have tried repeatedly to reverse a particular precedent, and fought long and hard for many years, but were rebuffed repeatedly in the courts. As a result, although they think the precedent is wrongly decided, they accept it as settled law. They will attempt in future litigation to get the courts to read it narrowly but will cease trying to overturn it directly. This conception of "superprecedent" means nothing more than that a struggle over constitutional meaning has been settled in practice. It does not mean that everyone accepts the precedent wholeheartedly or unreservedly or believes that it has "legs," i.e, that it should be extended generously to other situations or expanded in the same way as precedents that are clearly correct expressions of the Constitution. Former opponents will continue to read it narrowly; they will simply cease to demand that it be overruled.

Institutional and precedent conservatives are also unwilling by disposition to create new precedents to better defend and protect non-privileged persons. The Supreme Court of the United States, and its lower courts that operate under it, share a co-equal burden in the governance of America. Precedent conservatives, and the conservatives of point number two below, should respond to the challenge and govern co-equal. There have been times in our nation's history, like Reconstruction, where the government has abdicated their role of governing; the Federal government was needed to enforce rights and did not do so effectively. There are also civil rights issues today which need the clarity of the Courts in order to secure rights for an entire class of unprotected persons.

(2) "A conservative can [also] mean someone who reads the Constitution narrowly and is reluctant to overrule the elected branches of government. Republicans have been waving this flag for decades, reverencing "strict constructionism" and the Framers' "original intent" while condemning "activist" judges who "legislate from the bench." It's not just that the conservative theory of constitutional interpretation is better than the liberal theory. It's that conservative judges have a theory, while liberal judges are just on an unprincipled power grab. This conceit is what allows Bush to insist that he does not impose any ideological litmus test on judges, as long as they agree with him."

Those judges and constitutional law scholars who defend "strict constructionism" and the Framers' "original intent" propagate a bad jurisprudence which I take to task in a post entitled "The Bankruptcy of Originalist Constitutional Jurisprudence." I provide an alternative framework by which to discern constitutional meaning.

(3) "The third meaning of conservative as applied to judges is a conservative judicial activist: someone who uses the power of the courts to impose conservative policies, with or without the benefit of a guiding philosophy."

These conservatives seem to be the movement conservatives of lore in jurisprudential circle. Using the courts to impose a social policy, without a clear philosophy, seems to be the very definition of an imperial judiciary. Whether liberal or conservative, one person should not simply choose the outcome they wish and vote accordingly. I make the case against movement conservatives when musing that supporting Miers, while she was still up for nomination, might not have been that bad an idea.

I welcome feedback.

Washington Post readers, welcome. Have a look around.