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