Conservatives, even more than most people, think of themselves as principled. Conservative principles, they insist, consist of certain fundamental verities that have stood the test of time and cannot be allowed to yield to considerations of short-term advantage. Perhaps the most fundamental conservative principle of all is reverence for the rule of law.
Conservatives claim to revere not just any law, but only law that emerges from a particular process in which each institution exercising legitimate authority is confined to the role, coupled with a specific mode of decision-making, that the constitutional system prescribes. This principle is captured in the notion of "due process" proclaimed both in our Constitution and in the ancient Magna Carta, and in the structural commitment to separation of powers.
Why, then, are the Wall Street Journal, Joe Scarborough, and other oracles of conservatism celebrating the new decision by a California state judge (Vergara v. California) which struck down that state's teacher tenure protection system? In one sense, the answer is obvious. That system is a perverse, special interest policy inimical to the education and thus the life chances of children. Everything that the judge said about the state's tenure system is true -- and appalling. He found that the quality of teaching is what matters most for students' development and learning in school; that a single year in a classroom with a grossly ineffective teacher deprives students $1.4 million in lifetime earnings and over nine months of learning per classroom compared to students with a merely average teacher; that the tenure law in effect grants tenure before an adequate evaluation of competence can be made; that the system employs thousands of grossly ineffective teachers and makes it almost impossible to dismiss them; that the school authorities are not allowed to take effectiveness into account when it lays off teachers; and that this system disproportionately affects poor and minority students.
But the judge did not simply document these findings and urge the political branches to rectify this unjust system. He struck it down as unconstitutional. And the first thing that a conservative confronted with such a decision might be expected to ask is: what justifies a man in a black robe in striking down a law enacted by the duly elected representatives of the people of California, a law enacted (in one form or another) by most if not all other state legislatures? How is this consistent with the rule of law?
Countless conservative voices have asked this very question on countless occasions when judges invalidate prison conditions, school practices, restrictions on abortion and same-sex marriage, public prayers, capital punishment, legislative districting, and many other popular laws. And almost invariably, conservatives denounce such decisions as "judicial imperialism," "legislating from the bench," "politicians in robes," and similar epithets. They vigorously denounce rulings that use ambiguous, open-ended constitutional standards such as equal protection and due process to do their policy work. The conservative mantra is that under our constitutional system, the people's elected representatives are supposed to make such decisions, not unelected judges.
Conservatives' delight in the Vergara decision seems utterly inconsistent with this principle. Indeed, two aspects of the decision cry out for special conservative criticism. First, the judge grounded the law's violation of equal protection not on the tenure system's discriminatory intent, but rather on its discriminatory impact. Discriminatory impact, however, is a legal category that conservatives typically deplore, viewing it as a device that leftist judges use to invalidate many legitimate laws and practices that liberals happen to oppose. Second, the judge relied exclusively on three judicial precedents which all involved state-imposed inequalities (segregation, funding disparity, and school term length disparity), yet the issue in Vergara (as he frankly acknowledged) is not equal access to education but rather the "quality of the educational experience." While equality and quality can be related, they raise very different issues of legal standards and judicial competence. Once courts begin to constitutionalize the quality of the classroom experience, there will be no end to judicial meddling in educational policy. Or so one would expect a conservative to argue.
Conservatives' glee over the Vergara decision reveals that conservatives, like liberals, abandon (or reinterpret) their principles when it suits their political or policy purposes. They toss aside their commitment to judicial self-restraint and the rule of law because they want to seize the opportunity to use the courts to get rid of a pernicious system that our elected officials endorse, however unwisely. Their real principles seem to be that the end justifies the means, and it all depends on whose ox is gored.
Peter H. Schuck is an emeritus professor at Yale Law School. His new book is Why Government Fails So Often, and How It Can Do Better (Princeton).