It was a toss-up between here and IMHO, and since I am going to use the a-word and r-word (abortion and religion), I will just stick it here and then have it moved if needed.
IANAL, and have not read a great majority of SCOTUS decisions, but almost every reference to them or decisions they are expected to make refer to them as “the current conservative Supreme Court” etc. What is the basis for this? From what I can tell from some of their decisions, they are a) pro-choice, b) pro-humanist to the absolute removal of mention of religion (well Christianity anyway) in any public sector, and c) see the Constitution as a very rough draft that is to be interpreted as loosely as they want. These don’t strike me as traditional conservative views.
I have no opinion on whether they are or not, but would like to form one with a informed view, and you are the most informed people I know.
If everyone but me can clearly see why people think that they conservative, then there is no debate and this should be moved to IMHO.
It’s all relative. Compared to the Warren Court, the current court is a bunch of stonehearted conservatives. Compared to the Pre-New Deal court, they’re a bunch of fuzzyheaded liberals.
Yes, but Republicans regularly make appopintments to the Court who turn out to be far more liberal than expected (William Brennan, Harry Blackmun, John Paul Stevens, David Souter). Somehow, Democrats never seem to make the mistake of accidentally appointing conservatives (not since FDR appointed Felix Frankfurter, anyway).
What about Whizzer White?
In general, the six-man majority on the court are politically conservative, though their jurisprudential philosophies vary significantly. (I refuse to try to characterize them on the latter basis.)
Here’s my view on it, and I think the voting patterns bear this out:
Hard-line conservative: Rehnquist, Scalia, Thomas (the three most conservative justices at least since the Four Horsemen, in fact)
Moderate-to-conservative: Kennedy, O’Connor (generally more moderate than conservative)
Moderate-to-liberal: Souter, Breyer (Breyer’s an admin law guy, and doesn’t easily fit into the ideological categories)
Liberal: Ginsburg, Stevens (but nowhere near as liberal, jurisprudentially, as Brennan, Douglas, or even Warren)
Obviously whether a Justice seems liberal or conservative depends on large part on the facts of a given case, or on the area of law. Additionally, as noted previously on this board, there’s a difference between liberal/conservative politically or philosophically and liberal/conservative as a judge. Being liberal politically doesn’t always translate to judicial activism–see Ginsburg or Felix Frankfurter. And being conservative politically doesn’t always translate to judicial restraint–see Scalia or Oliver Wendell Holmes.
I’m trying to finish a paper on stealth Supreme Court nominations at the moment–when it’s done, I’ll break out the Supreme Court Compendium and show you how each Justice has ruled on various issues over their tenure on the court. That’s a better indicator than Election 2000.
No offense intended, but that’s for the most part flat wrong. Given a particular pending decision, most people who’ve studied the Rehnquist Court will be able to tell you pretty much exactly how it’ll come out most of the time, down to the split in the justices and perhaps even who’ll be assigned the majority opinion and who’ll write dissents.
And this, by astorian:
Man, you should really know better by now. I thought I disabused you of this silly generalization a couple years ago. That post to follow.
Very helpful all, thanks. As I said, I don’t know their politics very well and I was looking for a bit of help. And you gave it. Once again, thanks. On a side note, I was aware of the presidents that appointed them, but I wasn’t sure it was a good indicator. After all, GWB is fairly conservative, but it looks as if he would have to nominate a pretty liberal activist judge (if the need arose) just to get a nomination vote let alone a confirmation. I wasn’t sure if any of the sitting judges were “compromise” nominees appointed in a year the congress was controlled by the party opposite of the president. Thanks
I’d amend that post to say that John Paul Stevens has become more liberal over the years, a more gradual version of Blackmun’s shift. Other than that, I stand by the data above. Note that it directly contradicts your assertion that Brennan turned out more liberal than expected.
Let me comment once more on something kjckjc just said, since it bears directly on the paper I’m writing:
I don’t believe that’s true. I offer you, first, Anthony Kennedy and David Souter, neither of whom were thought to be liberal activists upon their nomination, and both of whom were fairly upfront about their judicial philosophies. Souter even criticized the Miranda decision, the Gregg decision, and certain gender discrimination decisions during his testimony; Kennedy did the same when he said he thought the Warren Court walked (and perhaps crossed) the line of judicial activism. Both were confirmed pretty easily.
Let me next offer you the following people: Harris Hartz, Edith Brown Clement, Barrington Parker, Sharon Prost, William Riley, Roger Gregory, Michael Melloy, Terrence O’Brien, Jeffrey Howard, Richard Clifton, Julia Smith Gibbons, D. Brooks Smith, Reena Raggi, Michael McConnell, Dennis Shedd, John Rogers, Timothy Tymkovich, Jeffrey Sutton, William Steele, Jay Bybee, Lavenski Smith, and Deborah Cook.
All Bush appointees, all Republican and presumably conservative, all confirmed to seats on federal courts of appeals.
As Charles Schumer said in distinguishing Reena Raggi from Priscilla Owen:
So I don’t think it’s fair to say that the Senate will accept only liberal activists; rather, the Democrats are trying to avoid apparent conservative activists, especially given how evenly split this country seems to be right now between both parties.
I’ll add that I don’t necessarily oppose Priscilla Owen. But, at the risk of revisiting this debate, the trouble comes when the President nominates people like Miguel Estrada who have no significant public record demonstrating their writing or reasoning style, and who prove singularly uncommunicative at their confirmation hearing (and granted, the Democrats could have done a much better job of asking him the right questions). The Senate has no duty, and should have no duty, to confirm judicial nominees that to them are jurisprudential ciphers.
Lastly, I’d note that there’s a big difference between appellate court nominations and Supreme Court nominations. It won’t be until Bush names his first High Court nominee that we’ll be able to tell how obstructive the current Senate is likely to be to explicitly (or implicitly) conservative candidates.
Yes, Gadarene, I KNOW you thought you’d disabused me of my silly notions. You thought wrong.
Erisenhower was never an ideologue, and rarely took political ideologies into consideration when making court appointments. That was foolish of him. He acknowledged that himself later, when he noted that the two biggest mistakes of his presidency were still sitting on the Supreme Court (Earl Warren and William Brennan).
Brennan’s radical ideology was not a “surprise,” strictly speaking… or at least, he WOULDN’T have been a surprise to anyone who paid attention. Problem is, in those days, Republicans almost never DID pay attention. Eisenhower made his nominations based on geography as much as anyone else (in his mind, there was a “Southern Seat” on the court, a “Northern urban Catholic” seat, and so on). Conservative columnist James J. Kilpatrick was one of the few observers in the 1950’s who predicted, based on Brennan’s record, just how he’d turn out. Years later, an amused Brennan would “congratulate” Kilpatrick for being the only one (apparently) who’d actually bothered to read any of Brennan’s lower-court decisions.
Presumably, if Eisenhower had known how much power the Warren Court was going to acquire, he might have done things a bit differently. But like most earlier Presidents, he’d always assumed that the Judiciary was the least significant branch of the federal government. Republicans were VERY late in realizing how powerful the High Court could be, and later still in taking ideology seriously. But by that time, it was far too late to undo most of the damage done by Warren, Brennan & Co.
And what’s your point? That Republicans weren’t paying attention back then? Do you think they’re paying attention now? If so, why do you use the present tense in your first post in this thread?
Are you contesting the notion that, for example, William Rehnquist and Nino Scalia are far more conservative than Ruth Bader Ginsburg and Stephen Breyer are liberal?
Holmes is an odd choice for both the conservative mantle and the activist tag, dontchathink? After all, the best-known dissent of the Great Dissenter was his opinion in Lochner v. New York, which (1) many folks (myself included) consider the most eloquent defense of judicial restraint ever put to paper, and (2) was written in opposition to conservative activism (namely, the overturning of a New York law regulating the workday for bakers).
I’d say all three of these observations are incorrect, kjckjc, as applied to the present Court – however, the Court does respect the precedent of past decisions which had created a preexisting pro-choice, pro-“huamnist” bias.
The Court is by no means pro-choice. IIRC, the most recent serious abortion case the Court has heard was Casey in 1992. There was no majority opinion; a three-justice plurality controlled. The plurality said, essentially “If we were writing on a clean slate, we’d say abortion is not protected, but, given Roe, we will follow its precedent.” However, Casey effectively overruled, uh, City of Akron (IIRC), which struck down “informed” consent laws which require doctors to present a series of horror stories to a woman before getting an abortion. Since Casey abortions have gotten considerably more difficult for most women to obtain – laws require informing the husband or parents of the woman, and it is in some circumstances a felony to give a woman a ride to an abortion clinic if she isn’t your daughter. It seems that these laws chipping away at the right to an abortion are inconsistent with Roe and the pre-Casey decisions; they’re acceptable under Casey probably, and the Court has refused to take abortion cases since then to enforce the right to an abortion.
As to the suggestion that the Court is anti-religion, I think there’s even less evidence of that. First of all, unlike abortion, the insulation of religion from public affairs is explicitly described in the First Amendment. While there are debates as to exactly what these clauses mean, no serious jurist could accept any line of reasoning that did not respect the fact that the Constitution establishes government free from religious coercion. Justice Kennedy’s opinion in Lee v. Weisman, however, made it considerably easier for a public institution or state legislature to impose the trappings of religion on those of us uninterested in encountering them.
As to the issue of strict constructionism, I don’t see any evidence that the current Court plays fast and loose with the text – at least any more than one has to; it is, after all, a Constitution they are expounding. However, I think all the Justices on all sides of the political spectrum do a worse job that they might wish of divorcing their jurisprudence from their policy goals. OTOH, I think they all do a better job of it than most people would.
And while we’re on the subject, let’s not forget the strictest of strict constructionists, Hugo Lafayette Black – who was hardly considered “conservative” by anybody to the right of Upton Sinclair!
Indeed. Just today, the Court issued a unanimous opinion, authored, by Justice Thomas, affirming that Congress meant exactly what it said when it wrote the 1991 amendments to the Civil Rights Act. The unanimous nature of the decision is noteworthy because it embraces a position that it very favorable to employment discrimination plaintiffs, and it rejects a textually-unfounded position adopted by every circuit court of appeals of which I am aware except the 9th Circuit.
The Court occasionally plays fast and loose with precedent, but it does not play fast and loose with the text of the Constitution or the acts of Congress.
Sorry, should have noted that the “textually-unfounded position adopted by every circuit court of appeals of which I am aware except the 9th Circuit” is a position that is hostile to employment discrimination plaintiffs. The Bush Admin even filed an amicus brief opposed to the plaintiff-friendly position, but it didn’t work.