69. Liberal / Conservative

A January 31 piece by David G. Savage, "Alito Seen as Carrying the Torch for Reagan," is worth reading before it disappears into the LA Times' archives.  It neatly captures the conventional wisdom about the politics of the Supreme Court, although it's not entirely clear whether Savage intended to report on the usual cliches or was in all innocence purveying them.

(Incidentally, the phrase carry the torch is clear enough, and the phrase carry a torch for another is clear enough.  But what does it mean to carry the torch for another?)

According to Savage, the conservatives around Reagan had ten goals they wished to achieve with the American judiciary.  They wanted federal judges who would

1.  uphold state laws that impose the death penalty
2.  restrict abortion
3.  allow a greater role for religion in public life, and specifically permit religious displays such as the Ten Commandments on public property
4.  favor property rights over environmental regulation
5.  favor states' rights over broad federal authority
6.  favor executive power over Congress and the federal courts
7.  give police and prosecutors a freer hand to enforce criminal laws
8.  not interpret the Constitution in a way that would create a right to same-sex marriage
9.  not forbid the use of the words "under God" in the Pledge of Allegiance
10.  and in general be "a court that tries to resolve cases but one that does not discover new constitutional rights," in the words of Kenneth Starr University Law School Professor Douglas W. Kmiec

I might quibble with goals 8 and 9, if only because the Reaganauts of 1981 probably didn't foresee that the Ninth Circuit would hand them the Pledge of Allegiance issue on a silver platter just in time for a national election, or that the Massachusetts Supreme Judicial Court would time its gay marriage ruling so helpfully.  But I'm sure that if they could have kept themselves from giggling in glee they would have whole-heartedly agreed that these were Very, Very Bad Decisions.  So Very, Very Bad, in fact, that the only possible response is a whole series of mass mailings and automatic-dialer push-polls.

But look at the contradiction between goal 4 and goals 5 and 10.  The property-rights movement, which (as any reader of the Wall Street Journal's editorial page knows) has long been casting about for a rallying point, only to be handed one by the Supreme Court's Kelo v. New London decision, is all about displacing state law with broad federal authority based on a newly-discovered (or, if you prefer, rediscovered) constitutional right.

Note the somewhat less-obvious contradiction between goals 5 and 6.  "Executive power" means centralized federal power.  Perhaps at some abstract level centralizing federal power in the executive branch isn't necessarily inconsistent with a robust federalism, but in practice centrifugal and centripetal forces are opposites.

And what's so conservative about # 6 anyway?  Anti-New Dealers such as the real Bob Taft wouldn't have found anything inherently conservative about ceding more power to FDR and Truman.  (Of course, Mr. Republican is likely too busy spinning in his grave about events on his grandson's watch to have any otherworldly attention to spare.)

And even if the average Reagan voter favored giving police and prosecutors a freer hand to enforce the criminal laws, the two long-sitting hard-core conservatives on the Court beg to differ.  (See post 55 and its link to Sentencing Law and Policy.)  But then note the contradiction between Scalia's and Thomas's rights-based libertarianism with regard to ordinary crimes and their position on abortion.  Why are the emanations of some penumbras more compelling than others? 

Finally, only a truly masochistic liberal (but then, is there any other kind?) would define his or her creed in terms of opposition to Moses and Jehovah.  I mean, really.  The Ten Commandments.

Some of the issues on Savage's list (Ten Commandments, "under God") are 99% symbolic, their tiny core of constitutional meaning hidden in the piles of bullshit.  Others (executive power, states' rights) are, like the engines on Air Force One, in themselves ideologically neutral.  The ideological content of power is never inherent, but always supplied by the person or organization wielding it.  Medical marijuana, for example, is a state's rights issue, as the line-up of the justices in Gonzales v. Raich reveals, but the conservative jurisprudence of O'Connor, Thomas and Rehnquist would have produced the more liberal result.

What the items on Savage's list have in common is their potency on the campaign trail.  Judicial decisions that produced the desired results would be "conservative" in the sense that they would please less-reflective conservative voters (although # 6 wouldn't have done so during the 1993-2001 era).  But evaluating judicial decisions by their results is misleading, unless it is first assumed the judges rendering them are entirely result-oriented, that is, corrupt, dishonest or incompetent.  (Which, of course, is sometimes an appropriate assumption.  See post 46.)   If a judge never reaches results that disconcert her ideological soul-mates, it's not because she's liberal or conservative but because she's a bad judge.