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Supreme Imbalance: Of Liberals and Conservatives

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In an earlier post ("Supreme Imbalance"), I explained that we currently have an extraordinarily "conservative" Supreme Court. In this post, I will explain what I mean by "liberal" and "conservative" in the context of the current Court.

When people think of a "liberal" Justice, they are usually thinking of Justices like Earl Warren, William Brennan, and Thurgood Marshall. What made these Justices "liberal"? To begin with, they shared a common vision of the purpose of judicial review. They believed that a primary responsibility of the judiciary is to protect individual liberties, and most especially the rights of minorities and others whose rights might not be fairly protected in the majoritarian political process. They believed that this responsibility was both contemplated and intended by the Framers of our Constitution as a fundamental check on the power of the elected branches of government, and they believed that courts can fulfill this responsibility only by actively interpreting the Constitution to ensure that democracy operates both properly and fairly.

It was therefore a "liberal" approach to constitutional interpretation that produced such decisions as Brown v. Board of Education, forbidding racial segregation, Engel v. Vitale, prohibiting school prayer, Reynolds v. Sims, protecting the principle of "one person, one vote," Gideon v. Wainwright, guaranteeing the right to counsel to those accused of crime, Goldberg v. Kelly, requiring a hearing before the termination of welfare benefits, and the Pentagon Papers case, forbidding the government to enjoin the publication of classified information about the Vietnam War. Each of these decisions, and many others besides, illustrates what most people mean by a "liberal" approach to judicial review.

Defining a "conservative" Justice is more difficult. I would identify at least three different types of judicial conservatives. First, there is what we might call the "judicial passivist." This type of "conservative," typified by Felix Frankfurter and John Marshall Harlan, acts on the view that judicial review is an extraordinary exercise of undemocratic governmental authority, and that it should therefore be employed only when a law is clearly unconstitutional. At their best, such judicial passivists are principled, even-handed, and neutral in their reluctance to invoke the power of judicial review.

The basic assumption of this type of "conservative" jurist is that democratically-enacted laws are presumptively constitutional and should be invalidated only when there is no doubt of their invalidity. To do otherwise, they believe, would be an illegitimate judicial usurpation of the legitimate authority of the majority to make whatever laws they see fit, subject only to clear and unequivocal constitutional limitations.

When critics attacked the "liberal" Justices of the Warren Court as "activist" in the 1950s and '60s, what they usually said they wanted were "passivist" Justices who would exercise "judicial restraint" and give the democratic branches of government the deference they deserve. I should note, by the way, that judicial passivists do not necessarily reach politically "conservative" results. On some issues, such as the constitutionality of affirmative action, campaign finance regulation, regulations of the market, and regulations of commercial advertising, principled passivists will reach results that are politically liberal. Thus, this approach is institutionally, but not necessarily politically, conservative.

A second form of "conservative" Justice is the so-called "originalist." Originalism is, in a sense, a variant of "passivism," but it is not institutional passivism. That is, it is not based on the assumption that courts should err in favor of upholding laws. Rather, it is based on the assumption that courts should invalidate laws only when they are confident that the Framers affirmatively intended the particular practice at issue to be unconstitutional. Thus, in theory, originalists can be either activist or passivist, depending on their reading of the Framers' intent in any specific situation.

Justices Scalia and Thomas are the best examples of "originalist" conservatives. Unlike "liberal" Justices, they do not ask whether the law at issue infringes the underlying purpose of a particular constitutional provision; and unlike conservative passivists, they do not uphold every law that has a reasonable justification. Rather, they ask whether the Framers themselves affirmatively intended to prohibit the practice or policy in question.

In theory, originalism can be "liberal" as well as "conservative" in its results, depending upon what the Justice thinks the Framers intended. Justice Scalia, for example, has taken what might be seen as conventionally "liberal" positions in cases involving such issues as flag burning, the Confrontation Clause, and habeas corpus, because of his understanding of the Framers' intent. Most often, however, originalism, at least as it applied by its typically conservative adherents, leads to results that are conventionally conservative.

The third form of "conservative" Justice is the "conservative activist." A conservative activist aggressively interprets the Constitution and invokes the power of judicial review to implement conservative political values. Justices McReynolds, Sutherland, and Peckham are good examples, as illustrated by their decisions during the early years of the twentieth century, during the Lochner era, when they broadly construed the so-called "freedom of contract" to invalidate all sorts of progressive legislation. In the modern era, I would describe Justices Rehnquist, Roberts, Alito, and sometimes Scalia, Thomas, and Kennedy, as "conservative activists."

Recent cases that illustrate "conservative activism" include decisions that aggressively interpret the First Amendment to invalidate restrictions on commercial advertising and campaign finance regulations, aggressively interpret the Equal Protection Clause to invalidate affirmative action, aggressively interpret the takings clause to invalidate laws regulating property, and aggressively interpret the principle of federalism to invalidate federal laws dealing with such issues as domestic violence, handguns, the environment, and age discrimination.

In my view, "conservative activism" is the least principled and least justified of the four approaches I have identified. Unfortunately, it is also the prevalent form of constitutional interpretation on the Supreme Court today. Because it is so important, I will devote my next post in this series to illustrating just how strongly this approach has shaped the jurisprudence of some recent Justices.

This is the second in a series of six posts on the make-up and direction of the Supreme Court.