Wednesday, June 03, 2009

Liberal Versus Conservative Non-Deference

In my latest FindLaw column, I ask what a judicial philosophy is and what Judge Sotomayor's judicial philosophy is, in particular. I conclude that, by contrast with the Supreme Court's conservatives (focusing on Justice Thomas and Chief Justice Roberts, because of points they made in their respective confirmation hearings), who are formalists, Judge Sotomayor is a legal realist. (If these categories are unfamiliar to you, please read the column, where I explain them. Actually, please read the column even if the categories are familiar to you.)

As I also say in the column, to say that a judge is a legal realist is only to begin to describe her or his judicial philosophy. Recognizing that values and background influence a judge's decisions, we still have the question of what a judge should strive to do. One way to characterize that inquiry with respect to constitutional cases is to ask about the pattern of deference and non-deference to political actors that emerges from the judge's decisions. (This idea is developed in Chris Eisgruber's book, The Next Justice, which I also cite in the column.)

One possibility would be for a Justice to defer to political actors across the board. This position was powerfully advocated by James Bradley Thayer in the late 19th century, and various academic versions of "minimalism" echo it today, but the closest thing we have had to a Justice who practiced across-the-board deference in the last 70 years was Justice Frankfurter. No one on the current Court takes this position. Accordingly, the core question for any Justice these days is when, not whether, to deny deference to political actors. And on that question, it's interesting to note the following pattern.

Liberals often do not defer on (i.e., are willing to strike down laws involving):

Death Penalty
Establishment of Religion
Free Speech
Gay Rights

Conservatives often do not defer on (i.e., are willing to strike down laws involving):

Affirmative Action
Federalism/States' Rights
Gun Rights
Punitive Damages
Takings of Private Property

That pattern is best explained--indeed, I am tempted to say it is ONLY explained--as a reflection of the different first-order political values held by liberals versus conservatives rather than by any distinctly jurisprudential views. It is thus pretty clear that, to the extent that a pattern of deference and non-deference is constitutive of judicial philosophy, political ideology is in turn a very large component of judicial philosophy.

Posted by Mike Dorf


Anonymous said...

“Formalism”, as described in the Findlaw column, is the only proper “philosophy” for judges, who are definitely not supposed to make policy. Before I defend my position further, let me emphasize, that Roberts, Scalia, Alito, Thomas, and the late Justice Rehnquist were all liars—they base(d) their opinions on ideology, whenever their ideologies conflicted with an objective interpretation of the law, and I’ve got plenty of examples to prove it.
The “formalistic” approach, which I prefer to call the “objective” approach, of course has to be modified with “to the extent possible”. But it turns out that the instances where existing law doesn’t guide us are far rarer than Professor Dorf seems to believe. My favorite example is the trio of famous cases, two inaccurately maligned, and one praised for the wrong reason. These are Dred Scott, Plessy, and Brown v. Board of Education.
Dred Scott’s problem was not poor legal analysis, it was bad law. Slavery was lawful and recognized, and to a certain extent protected, by the Constitution. The proper solution was to change the law, which did happen.
Plessy was carefully reasoned and based on existing law. It was only the last in a series of Supreme Court cases that upheld segregation. The problem this time was a racist society. The 14th Amendment’s “equal protection” clause had been rightly and necessarily held to prevent “unreasonable” classifications. That is, “equal protection” is very context-dependent. And 19th-century European and European-descended societies were thoroughly racist. Virtually every white person, from Abraham Lincoln through Frederick Law Olmstead, Louis Agassiz, Robert Baden-Powell (founder of the Boy Scouts), David Livingstone, William Seward, Harriet Beecher Stowe, and including the scientific establishment and not excluding white abolitionists, was, to a greater or lesser extent, a racist. In such a culture, separation of white and black school children was clearly “rational”. (I recognize that the opinion included many unnecessary, overtly racist, remarks.)
Brown did little more than conclude that segregated schools harmed black children. The Court far better have struck down segregation on a “formalistic” basis: the 19th century scientific establishment’s belief in racial inferiority had been discredited; therefore, segregation on the basis of race was no longer rational.

Len said...

I think interpretation of the Fourteenth Amendment is one jurisprudential value that differentiates the conservative justices from the moderates today. I recall there was a recent paper that analyzed their voting and found the conservative justices more likely to find federal laws unconstitutional and the moderates more likely to find state laws unconstitutional. The justices all defer to a legislature to some degree, but how each balances the Fourteenth with the Tenth Amendment determines whether it is the state or federal legislature.

Jamison Colburn said...

I've always wondered if you could break out liberals and conservatives on relative likelihoods of deferring to legislatures versus agencies. At least, whether you could do it well. (I seem to recall some questionable efforts to do so.) Off the top of my head, it seems like there would be too many dependent variables to establish a large enough sample . . . but, then again, some stats whiz (Neil?) could probably do it!

Neil H. Buchanan said...

Thanks for the vote of confidence, Jamie. I think I'll add this to my list of (literally) 10 projects on my to-do list. Obviously, I'm likely to be scooped on this before I might publish a study; but I'm serious when I say that I'll do it if it still has not been done (well) in a few years.