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.
want, liberal, conservative, I don't care,
point is, a lot of this 'misleadership' is
just that, bait n switch while we get set up
for the next round of Grand Theft Larceny: Iraq
Oil Profits. It's all a money game, I don't
think your vote really counts for anything
anymore, I don't think we even really have
functional representation anymore, I hold
BOTH parties equally responsible for the
mounting runaway debt, failing to hold this
administration to account, and to the degree
that they haven't spoken up against/about
the war, well, to that degree I consider
them complicit in planning it, and tolerating
its' continuation, and continuing to provide
tax monies for it. It's all about the $$$$,
call it whatever you think makes it sound better...
One wonders why certain types of constitutional interpretation must be labeled as "aggressive", while other types of constitutional interpretation (those causing a result pleasing to your particular ideology, such as creating shrouds from whole cloth) are not to be labeled as "aggressive" interpretations.
One also wonders where, in the 1st Amendment where it prohibits the Congress from abridging the freedom of speech, it is appended, "unless said speech be commericial in nature, because we're all well aware that commercial speech is lesser speech".
And since the above-quoted text is no where to be found in the 1st Amendment, why don't you view all the Court decisions holding commercial speech as "lesser speech" to be "aggressive interpretations" of the same?
EndTrans.
You'll also note there are no exceptions to the 1st amendment for "national security reasons", or any other security reasons.
One wonders how a principled person could create or support these oft-used exceptions to the 1st amendment.
How do you feel about "free speech zones"?
[1] Not a purist myself, but I wonder about the Professor's views as to what is an aggressive interpretation of the Constitution, absent some intervening doctrine.
[2], [3] On intervening doctrines, why not also mention that the 1st Amd. doesn't except defaming others, doesn’t except shouting of "FIRE" in a crowded theatre? These unstated exceptions are akin to national security – and different than presto-magically declaring that commercial speech is "lesser speech" entitled to "lesser rights" than other types of speech. What I mean is, society had already recognized our individual and collective rights not to be defamed or injured. So what is free speech is tempered with such considerations. As far as I know, society did not recognize one's right not to be bothered by commercial speech (Please see COMMENT-1). I am glad that we don't allow the free speech right of the defamer to trump your right to not be defamed, nor free speech rights to trump your right not to be injured in a crowded nonsensical rush from a non-burning theatre, nor to injure national security via premature disclosure of actual security secrets (And please see COMMENT-2 before you jump all over this last statement).
As to point [4], if by "free speech zones" you're referring to the practice of protecting certain elected officials by keeping them insulated from the real world, then how I "feel" about them is that they're pretty damned silly just on general principles. This Admin could do with a lot less insulation.
COMMENT-1: Although sometimes I wish to heck it had! Best I can do instead is teach my kids how to parse and discount the idiotic claims made in commercial adverts.
COMMENT-2: This is NOT to say that presidential administrations don't cry “National Security Wolf" way too often - I happen to think that they would classify as secret the Veep's sock sizes if they could.
One example is the Second Amendment's reference to the right of gun ownership in relation to militias. Clearly, this amendment is intended to support the 18th century institution of ad hoc militias raised by local communities and states to meet an immediate, short-term threat. In that context, granting citizens the right to have a firearm makes a great deal of sense. However, we no longer have ad hoc militias or the practice of calling for self-armed citizen volunteers for any purpose, which makes the entire Second Amendment an anachronism.
And yet we have the ongoing debate over its meaning and intent. That's what's so strange.
HEY HEY HEY!
I will argue to the end with you, my SOVEREIGN RIGHT to arm bears.
Something like that.
I get all of my camping and military surplus gear from USCOTS. It's a really great store.
In general when the writers of a supreme court decision feel the need to write in that they do not want the decision setting any precedences one has a hint that it is not a decision made out of principle. In this case a state's right leaning court decided that it should interpret Florida state law rather than the Florida Supreme Court. Even the justices did not think this passed the laugh test. It simply did what they wanted done.
between the government and the people. And it became always
wider.....the whole process of its coming into being, was
above all diverting, it provided an excuse not to
think....for people who did not want to think anyway gave us
some dreadful, fundamental things to think about.....and kept
us so busy with continuous changes and 'crises' and so
fascinated.....by the machinations of the 'national enemies,'
without and within, that we had no time to think about these
dreadful things that were growing, little by little, all
around us.....
"Each step was so small, so inconsequential, so well
explained or, on occasion, 'regretted,' that unless one
understood what the whole thing was in principle, what all
these 'little measures'.....must some day lead to, one no
more saw it developing from day to day than a farmer in his
field sees the corn growing.....Each act is worse than the
last, but only a little worse. You wait for the next and the
next.
"You wait for one great shocking occasion, thinking that
others, when such a shock comes, will join you in resisting
somehow. You don't want to act, or even talk, alone.....you
don't want to 'go out of your way to make trouble.' But the
one great shocking occasion, when tens or hundreds or
thousands will join with you, never comes.
"That's the difficulty. The forms are all there, all
untouched, all reassuring, the houses, the shops, the jobs,
the mealtimes, the visits, the concerts, the cinema, the
holidays. But the spirit, which you never noticed because you
made the lifelong mistake of identifying it with the forms,
is changed. Now you live in a world of hate and fear, and the
people who hate and fear do not even know it themselves, when
everyone is transformed, no one is transformed.
"You have accepted things you would not have accepted five
years ago, a year ago, things your father.....could never
have imagined."
Milton Mayer, They Thought They Were Free, The Germans,
I already subscribe to this sentiment about the White House, thanks to Naomi Wolf's writings and my own history lessons growing up in Germany.
Hopefully your post rings a bell with many - especially:
"You wait for one great shocking occasion, thinking that others, when such a shock comes, will join you in resisting somehow..."
I feel we're all waiting for the big Forrest Gump scene when tens of thousands gathered in D.C. - and I'm afraid we're waiting invain.
In other words, Justices Blackmun and Brennan and their ilk, when faced with a constitutional block to their particular agenda, just made shit up.
Don't forget that the outrage over the Warren Court was mostly over the Court's interference with segregation. And don't forget that the "Conservatives' instituted state sponsored terrorism throughout the South in reaction to the Courts decision to outlaw segregation. (The Ku Klux Klan was only the most visible manifestation. The White Citizens Councils and State Soveriegnty Commissions were instituted throughout the South were instituted to enforce the terrorism)
Also don't forget that this is where the "conservative" Christians movement came from. They believed that the basis of segregation came from their interpretation of the Bible, and that the state sponsored terrorism designed to keep people of color from voting (!!!!) was justified by their religion.
Impeach Earl Warren was the battle cry of the lunatic fringe (including Gerald Ford who opposed the Voting Rights Act of 1965).
But now the lunatic fringe has merged with the mainstream Republican "conservative" movement.
Who says that there is "progress?"
30 more years of
NO JUSTICE
NO PEACE
Thanks cowardly Dems who couldn't bother to filibuster.
Please, this is the most balanced SC we have had in years.
Please, please please do something about this and truly declare yourselves a civilised society . . . shame
http://women.timesonline.co.uk/tol/life_and_style/women/families/article2732991.ece
http://en.wikipedia.org/wiki/Liberalism
Scalia harps about this stuff all the time when it comes to legislative history. He's notoriously unreceptive to the writings of House and Senate Reports because those reports don't always reflect a consensus view on the law's meaning. For him, and others, to assume that they can glean original intent from the Constitution in areas where factual circumstances have outpaced legal principles, is absurd. Ask yourself this question: did the framers of the Constitution intend for Congress' authority under the Copyright Clause, which speaks only of the "writings" of authors, to include authority regarding digital, streaming transmissions of audio files, including transmissions that occur at each server along the network? What exactly did the framers intend in this circumstance? Or, more reasonably, did the framers intend that the underlying principles set forth in the Copyright Clause and established through the years in legal precedent expounding on those principles, would allow future generations to decide these novel questions?
Originalism (Or more accurately, Strict Constructionalism) is FAR from a sham. To call it that is equal to the far left thinking that the Constitution is a "living, breathing document". The Constructionalist sees the Constitution more as written in concrete. The founders clearly knew what they were saying.
You complain that Antonin Scalia is "unresponsive to the writings of House and Senate Reports". Im sure you recall Government 101 and 3 separate branches of government? By the SCOTUS even considering the "writings of House and Senate Reports" to make decisions by the court is surrendering the authority of the SCOTUS to the Congress. In cases brought before the SCOTUS, the only thing they are looking at is how the law meets or does not meet the intent of the Constitution. Where the SCOTUS gets things wrong is when liberal members read something into the Constitution that isnt there (such as abortion, states rights, or the welfare clause).
Art 1, Sec 8
"The Congress shall have power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The obvious extension to this from a constructionist point of view is that the artist/writer/videographer would fall under the copyright clause. The swapping of files while still under copyright would be an infringement. A liberal would probably say that if "it" is in the public domain, its free for all to have, irregardless of the above article.
On the RARE occasion that the Constitution is not clear, another excellent reference is the Federalist Papers. (From Wikipedia) The Federalist Papers are a series of 85 articles advocating the ratification of the United States Constitution. Seventy-seven of the essays were published serially in The Independent Journal and The New York Packet between October 1787 and August 1788 . A compilation of these and eight others, called The Federalist, was published in 1788 by J. and A. M’Lean.
The problem is that the framers worded the constitution purposely in a way that stands in opposition to the attempts to rule by original interpretation. As Stone notes above, the liberals believed they were doing what the framers intended too. In general the original interpreters do as much to read their own views into what the interpreters wanted.