Huffpost Politics
The Blog

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Bennett L. Gershman Headshot

Are These Judges Really Conservatives?

Posted: Updated:

Watching the Supreme Court in action is fascinating, especially when reflecting on how the five so-called conservative justices flaunt their repugnance for conservative judicial values. These judges -- John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito -- were nominated and confirmed after representing in sworn testimony before the Senate Judiciary Committee that they would take a conservative approach to the judicial function. But reviewing their handiwork over time exposes these "conservative" justices as pretenders. They have abandoned their disguise as judicial conservatives, and, most dangerously, appear to be trying to take our nation into a very radical place that President Obama described two years ago as "devastating" to our democracy.

What are the hallmarks of judicial conservatism? They include respect for tradition, a duty to follow judicial precedents, deference to the political branches of government, an interpretation of law based on neutral principles, and restraint in indulging one's own political ideology. When they testified before Congress, all of these future Justices described themselves as strict constructionists of the Constitution, represented that they would not actively reach out to decide issues not presented in the case, claimed to be guided by the principle of stare decisis, which means that a judge has a duty to follow prior precedents, and swore that they would not try to insinuate their own ideological views into their decisions. Indeed, the right-wing cheering squad -- in Congress and the public -- has invoked these precepts for decades in castigating so-called "liberal" justices for their judicial "activism" and their flaunting the principle of judicial restraint.

What is so unusual about these so-called conservative Justices is how cynical they are. While they continue to profess to embody a conservative philosophy, they reveal themselves in the cases they decide as unabashed radicals who decide cases to fit their political ideology, and then provide shockingly incompetent reasoning to support their flawed conclusions. Their decisions often embody the ipse dixit logic -- "it's so because I say it's so," and as a five-justice bloc, they have the power to do just that. No wonder that the Supreme Court enjoys such a dismal reputation -- only one in eight Americans believe that the Court decides cases based on legal reasoning.

The appalling 2000 decision of Bush v. Gore set the stage for the public's distrust of the Court, and the pretense of a Court reflecting a conservative philosophy. Scalia, Kennedy, and Thomas, along with then-Chief Justice William Rehnquist -- all adulated as staunch conservatives -- were the architects of the most unprincipled and activist decision in U.S. history, a decision that installed George W. Bush as president. Scalia today castigates anyone who tries to revisit that case with the angry injunction to "get over it." But, of course, for those of us who remember Bush's legacy -- a devastating Iraq War, a cataclysmic recession, and unprecedented scandals in the Justice Department, will find it hard to forget.

Conservatives? Consider the case that parallels Bush v. Gore for its perfidy, the infamous Citizens United case in which the five-member "conservative" majority -- Roberts, Scalia, Kennedy, Thomas, and Alito -- reached out to reverse a century of constitutional law and overrule two prior recent precedents of the Court. These "conservatives," by this naked political act, opened the floodgates for the most massive corporate spending on elections in history, and which threatens to destroy the democracy that our framers thought they were creating. Because of this incredibly "activist" decision, the famous aphorism "one person one vote," coined by the Court when it abolished fraudulent voting districts, should now be rephrased as "one corporation, one hundred thousand votes." And by the way, is there any question that the five justices well knew that by allowing corporations to spend freely they would be favoring Republican candidates? And for those who care about solid legal reasoning, the Court's reasoning in the case was preposterous. Corporations are not people; speaking is not their function. Corporations are legal fictions.

The last week of the Term was memorable. There is, of course, the now-famous political rant by the darling of the conservatives, Justice Scalia, over the majority's striking down most of Arizona's cruel immigration laws, a rant that would be acceptable if Scalia was running for the Arizona senate, but not appropriate from a Supreme Court justice. And, of course, there was the radical ruling by the five "conservative" justices in the "health care" case, rejecting absolutely clear and long-established constitutional doctrine, that Congress lacked the power under the commerce clause to require people to purchase health insurance. To be sure, Chief Justice Roberts supposedly "saved the day" by siding with the liberal bloc to uphold the law under Congress's taxing power. But why are right-wing conservatives so upset with Roberts? He found an appropriate and narrow ground to uphold Congress's legislation, a fundamental tenet of conservative judging. But of course, the label "conservative" is really meaningless to these people. An "activist" judge is fine, as long as his or her activism supports your politics.

Register To Vote