Monday, March 29, 2010

The Future of Conservative Anti-Activism Rhetoric

By Mike Dorf

As Barry Friedman observes in The Will of the People, one of the most striking features of the last 20 years or so is that the Supreme Court has come under sustained criticism from both the left and the right for its ostensible judicial activism. Each side, of course, has been unhappy about different cases, but the combined effect was and remains unsettling. As the median Justice, Justice Kennedy, in particular, is simultaneously denounced as a radical lefty for supporting gay rights and the rights of detainees, and as a radical righty for voting to invalidate affirmative action and campaign finance regulation.

Both sides could be simultaneously right. If one thinks that in general courts should defer to the outputs of legislative bodies, then a jurisprudence that invalidates some laws as insufficiently liberal and other laws as insufficiently conservative would be highly problematic. But few criticisms of the Court take this form. In general, critics tend to denounce the decisions invalidating laws they like without accepting the other side of the coin: that this is the price of other decisions invalidating laws they dislike.

Nonetheless, the right has enjoyed a tactical and rhetorical advantage well illustrated by the events of the last week. Even as Republican AG's around the country demand that the courts invalidate health care reform legislation that was the product of a year-long debate and for which Democratic lawmakers are pretty clearly on the hook politically--i.e., even as they demand what, if the shoe were on the other foot, they would almost certainly denounce as judicial activism--it is obvious that they will continue to denounce as judicial activism any liberal decisions striking down legislation. Indeed, some conservatives will even denounce as judicial activism decisions NOT to invalidate laws and policies they dislike, as happened in the wake of Kelo.

It's tempting to dismiss such rhetoric as unprincipled, but I believe that much of it is sincere. Many conservatives believe:
1) Originalism is the only legitimate approach to constitutional interpretation;
2) Originalism almost invariably leads to politically conservative results;
3) It is therefore impermissibly "activist"--in the sense of judges substituting their views for what the Constitution "really" requires--for the Court to reach any liberal results.

Needless to say, this syllogism is extremely vulnerable at both points 1) and 2), and therefore at point 3). Yet I think we liberals misattribute insincerity to conservatives when we point out the audacity of their willingness to resort to what, from our perspective, looks like litigation deeply at odds with their rhetoric about the importance of judicial restraint. Given their very dubious but sincerely held premises, there is no contradiction.


Gary said...

Do you have a similar argument to explain why the principled believers in states' rights become federalists when they disagree with a state's actions?

Michael C. Dorf said...

Good question, Gary. I think the same basic dynamic is at work:
1) The Constitution demands states' rights;
2) States' rights decisions will be conservative;
3) Therefore, the Constitution demands conservative results.
The main difference here is that the counter-examples (such as liberal states' rights arguments to limit federal power over assisted suicide and medical marijuana) are so much more obvious that proposition 2) is very hard to maintain.

Hank Morgan said...

Very good post that really helps to clarify the nature of this debate and why conservatives might be sincere in espousing apparently hypocritical beliefs.

I think your post also illustrates a rhetorical problem for liberals. Many liberals do not accept part 1) of your syllogism, but have increasingly engaged in originalist rhetoric in public fora, presumably because public opinion polls reflect majority support for originalism in constitutional interpretation. Unfortunately, this leads to a sense in many Supreme Court opinions that the conservatives have a bit of a home-field advantage, having already set the terms of the debate. Even if a rigorous application of originalism does lead to liberal results, as I think it does in many cases, liberals tend to be "reluctant originalists," and thus not as convincing when engaging in this battle. They certainly don't appear to relish a sustained discussion of 18th-century sources the way that some of the conservative Justices do.

Charles said...

IMO ...

... the meanings of 1) and 2) in your syllogism are context-dependent. For conservative students of the Constitution, 1) might mean "original-X originalism is the only legitimate approach ..." (X = "public meaning" currently most popular); for thoughtful conservatives unschooled in constitutional interpretation but somewhat aware of such matters, 1) might mean what it says; for a conservative unaware of such matters, 1) most often appears to mean at most "J Scalia's (and sometimes J Thomas') opinions are the only legitimate ones ...", possibly no more than "people who want the results I do use this word, so I will too". (In each case, 2) is correspondingly modified).

While "sincere" is certainly appropriate in the first context and arguably is in the second, I have a problem with it in the last. To claim as a basis for one's position concepts of which one is completely ignorant may not be technically "lying", but according to my extended definition it at least comes pretty close.

A liberal student of the Constitution can either choose another value of X or accept "public meaning" but argue for alternative meanings. But if the only objective is to get on the originalism bandwagon, claiming to be an "originalist" seems to have the same deficiency as the third context above.

... similarly for "judicial activism".

The Counterfactualist said...

Given that originalism leads to liberal results, why not just use originalism if you are a liberal?

Neil H. Buchanan said...

I completely agree with Charles's comments, especially the idea that so much of what conservatives say is either "lying" or very close to it.

In response to The Counterfactualist's question: I can't speak for Mike, but I can say that I reject originalism because I view it as poor legal thinking, no matter what outcomes it might produce. Every liberal I know with legal training would reject the outcome-oriented approach implicit in the question.

Charles said...

Neil -

Could you elaborate on your rejection of originalism (presumably of the original public meaning variety)? I have my own reservations, but I'd be more interested in those of someone who knows what they're talking about.


Hank Morgan said...

I actually think Charles (and by extension Neil) gets it wrong in criticizing conservatives who are "unaware" of the finer points of legal doctrine. Charles says: "To claim as a basis for one's position concepts of which one is completely ignorant may not be technically "lying", but according to my extended definition it at least comes pretty close."

But all of us are ignorant about large swathes of public discourse, and yet the percentage of people saying "no opinion" in polling is usually quite low. Most of the grassroots supporters of the recent health-care bill had little technical sense of what was in the bill beyond the correct idea that it was an attempt to expand access to health care. I talked to a number of these people. Trust me, they were largely uninformed.

Were all these people "lying"? That seems like a pretty unfair term to apply. Rather, most people in the public identify particular causes, parties, or candidates that they tend to agree with on a wide number of issues. They then tend to support all the issues with which those candidates are parties are identified, even if the person is too uninformed to make a credible judgment about those policy areas.

As with politics, so with law. Conservatives may be mistaken in supporting originalism based on the fact that their preferred political and judicial leaders endorse it, but they surely aren't lying.

Charles said...

Mr. (Prof?) Morgan:

What I actually wrote was:

for a conservative unaware of [the different flavors of originalism], ["Originalism is the only legitimate approach to constitutional interpretation"] most often appears to mean at most "J Scalia's (and sometimes J Thomas') opinions are the only legitimate ones ...", possibly no more than "people who want the results I do use this word, so I will too".

... To claim as a basis for one's position concepts of which one is completely ignorant may not be technically "lying", but according to my extended definition it at least comes pretty close.

I see that as quite different from "conservatives who are unaware of finer points of legal doctrine" are lying. As one who routinely admits to ignorance of almost all matters (for the very reason you state), I try never to criticize for ignorance per se. But claiming - even if only by implication - that you know things of which you are in fact "completely ignorant" seems to me a different matter. For example, if a few years ago I had said "I think Darwin was right about evolution", that would have been a lie; until that time, I had no idea about the details of evolution, never mind what Darwin specifically said.

And for the record, although I agree with the sentiment of Prof Buchanan's statement, I would express it differently:

Distressingly, much of what contemporary political players say is either "lying" or very close to it; for Republican pols, substitute "almost everything" for "much".

And since I think it reasonable to assume that pols either know or should know whether what they say publicly is true, for them the technical definition of "lying" suffices.

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