And is there any tendency to use those terms more broadly than is warranted IRL?
Because to take the current example, a lot of folks seem to think that a new “conservative justice” and a “conservative-leaning court” will automatically embrace , for example, socially conservative causes (and laws inspired by them, assumably based on socially conservative viewpoints) and find any excuse or way to twist a view of the law that will put any kind of justification on their actions.
I’m not saying this is wrong, but I thought the entire concept and mindset would be interesting to examine. It seems that both sides think the other is full of “activist judges,” but as I thought about it, I began wondering if there was really any way to tell who is right “objectively.” After all, the interpretation of the law is the entire point, and while one side may think the facts are objectively on its side, I’m not sure there’s a way for a “disinterested party” to actually tell without a doubt. That may be at the heart of my pondering,
Hopefully I’m expressing what I mean to express on this one.
As I understand it, it’s really just a polite way to say “I want a judge who will rule in favor of what I want regardless of what the law actually says.”
A lot of conservatives, for instance, call Roberts, Gorsuch and even Kavanaugh traitors for ruling against conservative interests, even when they’re just applying the law as a referee should.
Knowing what the SCOTUS does, it seems to me that in looking at a case and looking at the constitution, pretty much all cases should be ruled on evenly. I don’t care how “conservative” or “liberal” a justice is, the facts remain the facts and should be ruled on as such.
But if you take into consideration the fact that in practice the act of justice is a negotiation, then things will be more clear. If the act of justice were a mechanical application of rules and regulation, then a simple computer program could handle it.
Application of law involves interpretation and negotiation, which involve the use of societal values part of which can be described as liberal or conservative.
In the context of todays definition of conservative vs liberal judge it comes down to your stance on abortion rights. The conservative Christian movement has shown it is willing to make a deal with the devil in order to get a chance at an anti-abortion judge. It makes no sense for them to support Trump otherwise as he is not a conservative himself and holds no Christen values at all.
In 1896 the SCOTUS ruled that “separate but equal” was just fine. In 1954 it essentially reversed itself and said it’s not fine. While I agree that’s a stark example, who knows what more Clarence Thomas types on the supreme court might do to damage social & economic justice issues.
There is an overt movement on the right to train conservative judges and get them into positions of power. The left is making some attempts to play catch up but are way behind.
The claim is that the Federalist judges are just promoting and originalist philosophy of law, but there are two problems with this, first, that isn’t actually what they are doing,
Standing behind the original meaning of the Constitution gives the Federalists a deeply appealing claim to a neutral, timeless American tradition. It is also complete nonsense, according to scholars who’ve looked at the rulings of “originalist” judges: Those judges tend to issue politically conservative rulings regardless of the larger principles at stake.
And second that stance stacks the deck against progressivism. Our world has changed tremendously since 1787. We have gained a new appreciation for diversity and civil rights, and recognized that law of the jungle survival of the fittest is not best of society. Pretending that all of this progress should be ignored in favor of what a small group of horse traders wrangled out in 1787, is wrong headed.
The difference is that liberal judges render all opinions while under the influence of hallucinogens . . . no, wait, all judges do that. But conservative judges supplement them with warm human brains.
Here’s the thing though; it’s not static. There’s tons of Federal case law that they almost certainly review, and that was applied all the way up through the appellate courts. A case is at the Supreme Court, because it comes down to the constitutionality of something, and when that’s the case, you kind of have to go to the original source to some degree. The Originalist position is to try and determine what the intention of the original Constitutional writers was, or in the case of amendments, what the intention of the writers of the amendments was.
To me, that seems less shady than trying to apply a latter-day spin to the wording of the document without regard for its historical context.
I don’t know how well you could objectively assess liberalism vs conservatism. And I agree with you, every judge I have encountered or heard of has had no problem being activist when they wished to.
I see at least a couple of different ways to assess this. One has to do with a judge’s willingness to respect the authority of a legislative or administrative body, as opposed to substituting one’s own judgment. Another concerns the judge’s ability to do their job independent of any number of personal preferences and biases. Also, you need to assess a judge’s behavior in isolated cases, as well as over time. It is quite likely that a particular judge would be “liberal” in some instances, and “conservative” in others.
It would be quite difficult to tease apart any of those.
FWIW, I am an administrative law judge, not that I’m expert in all things judicial. Anything I post here is purely my personal opinion.
I often tell people, Harry Blackmun was considered a conservative when he was appointed by Richard Nixon. And they never believe me. But he did join what was then considered the conservative wing of the court. He often said himself, he didn’t change, the court changed around him.
Anyway whether you still believe it or not, Blackmun was a Republican. An activist, out-of-touch Republican? Okay. But NOT a Democratic in any event. Party affiliation is a matter of public record, and not disputable.
Just a few thoughts: one, there is always the problem of accurately defining who is a liberal and who is a conservative. So, if you support abortion rights for women, but also believe the 2nd amendment gives you an individual right to own a gun, which one are you? And I am usually a bit bemused by those who think that when a justice they perceive as a conservative (or conversely a liberal) decides a case along “conservative” lines (again, what exactly are these?) that they are doing it because of the president who supported them. It makes sense to me that a conservative president will generally try to nominate a conservative justice, so what do you expect them to do. IOW, they don’t sit down before every decision and remind themselves who nominated them, and then try to decide the case to make that president happy.
Except in the case of Bush v Gore, where the matter was settled entirely on party lines in a case that specifically defied setting a precedent. It ruled in favor of the Republican candidate and then said its reasoning could not be used in other cases.
I literally don’t remember the part about the reasoning, but I’ll take your word for that. But as for the fact that it was settled on party lines, that alone is not enough to show that it was decided by each individual justice just because of the party of the president who appointed them to the court. I would hope that each judged the case on its merits alone. I am not so naive to think the former never happens, I’m just saying it’s generally a bad idea, IMO, to assume something like that based purely on the political breakdown of the justices and each’s vote.
Whenever somebody complains about “judicial activism,” remind them that the law has been made by judges for a thousand years. That is the tradition of the Anglo-American common law. It is much older than legislative acts – older, indeed, than the Parliament of England.
To all intents and purposes, there are Republican and Democratic judges and they will do whatever their party desires.
Yes, that is an exaggeration. But with Roe, for example, the conservative act would be to uphold it since it has been around so long. Overturning the voting rights act (clearly authorized by the constitution*) was a radical act. Equating money with speech with no authorization was another.
*It is worth quoting the 15th Amendment here, especially the second clause:
"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
The Congress shall have power to enforce this article by appropriate legislation."