Home | About | RSS Feed | Contact and Publicity Guidelines | Comment Policy the Law, the Universe, and Everything 

advertise-here4


Slip Opinions


Whatever happened to Henry Simons? (fp)

Wow -- that's some very scary poll results (kw)

The scarlet ankle bracelet. (fp)

Every good article should have one idea. (fp)

Family values in market turnover culture. (fp)

Banks really create value: probably $58 billion in overdraft fees & credit card penalties in 2009. (fp)

A Citizens United dream: Exxon could have deployed 10% of its 2008 profits to outspend every presidential and senatorial candidate that year. (fp)

Eternal Earth-Bound Pets promises to adopt your pet if you are raptured. (fp)

Habermas doesn't tweet, but does interview well. (fp)

Lessig on Google, copyright, orphans, and the future of access to information. (kw)

Our Podcast

Subscribe to Law Talk

law-rev-contents2.jpg


  • Posts by Author

  • Categories

  • Archives


  • Recent Comments

    • Kristina on Spring 2010: Is the Window Open?

    • PrometheeFeu on The Advantages and Disadvantages of Rewards

    • PoNyman on Very scary poll results

    • Civ Pro King on Privacy Rights in Death Photos: Catsuouras Case Decided

    • ParatrooperJJ on Privacy Rights in Death Photos: Catsuouras Case Decided

    • Lotta on The Take Away About Take Home Exams

    • Alan on Constitutional Rorschach Test (or Zen Koan)

    • Colin Crowe on The Take Away About Take Home Exams

    • Glomarization on Links and short thoughts on Amazonfail

    • Vinca on Book Review: Divergent Opinions: Why Community Matters — A Review of Sunstein’s Going to Extremes

    • A.J. Sutter on My Letter to the Economist on Climate Change

    • Keri Brooks on Spring 2010: Is the Window Open?

    • Illinois on Spring 2010: Is the Window Open?

    • Ken Rhodes on Constitutional Rorschach Test (or Zen Koan)

    • Ken Rhodes on My Letter to the Economist on Climate Change

  •  

    Site Meter

On Conservative and Liberal Labels

posted by Mike Dimino

My most recent post has engendered some discussion on a point tangential to its purpose, but important nonetheless — how to determine whether a particular Justice (or, I imagine, judge or individual for that matter) is conservative or liberal, or somewhere in between. Can we agree in any significant percentage of cases that an individual belongs at a particular place on that spectrum?

I think the answer is no, because such categorization depends on context, and each of us subjectively chooses the context.

Focusing on categorizing judges, now, each of us, I imagine, wants to see conservative and liberal as labels indicating the direction in which the given judge deviates from the ideal. Thus Judge Bork sees originalists not as “conservatives,” but as simply applying the law, and I am sure others on the left are the mirror image. If you’re an originalist, therefore, a conservative is one who deviates from originalism to achieve conservative results, and a liberal is one who deviates from originalism to achieve liberal results.

But because we have no agreement on what is the proper way to interpret legal texts, including constitutions, any labeling system dependent on evaluating a judge’s agreement with the “correct” results is not likely to be effective in general conversation. There are two alternatives I see. First, you could make the label purely relative, being explicit about context. In that manner we could quite sensibly (if over-simplistically) refer to the most conservative Justice on a certain issue, or even the most conservative Justice overall on the current Court.

Second, the inquiry could be more self-consciously empirical, in that a Justice will be scaled liberal or conserrvative based on the percentage of cases in which he decides cases in a liberal or conservative direction. Thus, we would rank Justice Ginsburg as 60% liberal, and Justice Scalia as 34% so. Such an effort has the promise of being relatively objective, but even there there are problems with determining how liberal one must be to be a “liberal” and so forth. For example, Epstein & Segal (from whom I got those figures, see p. 126) characterize Justice Ginsburg as “moderately liberal for voting liberal 60% of the time, but characterize Justice Scalia as “very conservative” and “extremely conservative” for voting conservative 66% of the time.

These debates are played out in plenty of areas besides the judiciary, and rarely do we agree on resolutions because we rarely agree on the proper context. Is academia liberal, for example, because such an overwhelming majority votes Democratic? Or is it conservative because taking a world view American academia is less liberal than much of the rest of the world?


 January 23, 2006 at 10:05 am   Posted in: Legal Theory   Print This Post Print This Post

Responses (2)

  1. Simon - January 25, 2006 at 11:38 am

    Isn’t the task even more complicated than that, because the same terms that are used to describe results – “conservative”, “liberal” – are also often applied to methodology? One hears criticism from the left that Justice Thomas is not a “conservative” jurist in the “true” sense of the term, because he is “radical” in seeking to give effect to the original understanding; likewise, one often differentiates “strict” construction with “liberal” construction.

    This is perhaps most aptly demonstrated by Kyllo – was Kyllo a conservative decision because it was reached through a conservative methodology, or a liberal decision because it reached a conclusion antithetical to conservative social views?

  2. SCOTUSblog - January 25, 2006 at 12:10 pm

    Blog Round-Up – Wednesday, January 25th

    On Alito: Law Dork has this post on “What Alito Means to the Left.” Here is the National Jewish Democrat Council’s blog with their statement against Alito. ACS Blog has this post on state’s seeking to challenge Roe once Alito…

Leave a Reply

*
To prove you're a person (not a spam script), type the security word shown in the picture. Click on the picture to hear an audio file of the word.
Click to hear an audio file of the anti-spam word


  • « Previous post
  • Next post »

Authors

Daniel J. Solove
Kaimipono Wenger
Dave Hoffman
Nate Oman
Frank Pasquale
Deven Desai
Danielle Citron
Lawrence Cunningham
Sarah Waldeck
Jaya Ramji-Nogales
Solangel Maldonado
Gerard Magliocca

Guests

Adam Benforado
Mark Edwards
Michelle Harner
Kristin Johnson
Jeffrey Kahn
Alex Kreit
Viva Moffat
Adam Steinman










Previous Guests

Michael Abramowicz
Michelle Adams
Robert Ahdieh
Michelle Anderson
Laura Appleman
Ann Bartow
Francesca Bignami
Jeremy Blumenthal
Kathleen Boozang
Bruce Boyden
Donald Braman
Al Brophy
Neil H. Buchanan
Bill Burke-White
Scott Burris
Paul Butler
Naomi Cahn
Anupam Chander
Miriam Cherry
Jack Chin
Jennifer Collins
Thomas Crocker
Allison Danner
Brannon Denning
Deven Desai
Mike Dimino
Mark Edwards
David Fagundes
Christine Haight Farley
Kim Ferzan
Dan Filler
Michael Froomkin
Amanda Frost
Timothy Glynn
Rachel Godsil
Eric Goldman
David Gray
Craig Green
Tristin Green
Jeffrey Harrison
Erica Hashimoto
Carissa Hessick
Laura Heymann
Robert Hillman
Christine Hurt
Darian Ibrahim
John Ip
Kevin Johnson
Dan Kahan
Brian Kalt
Sam Kamin
Michael Kang
Chimène Keitner
Orin Kerr
Nancy Kim
Heidi Kitrosser
Adam Kolber
Russell Korobkin
Anita S. Krishnakumar
Susan Kuo
Greg Lastowka
Sarah Lawsky
Erik Lillquist
Jeff Lipshaw
Jonathan Lipson
Jacqueline Lipton
Joseph Liu
Michael Madison
Solangel Maldonado
Jason Mazzone
Linda McClain
William McGeveran
Salil Mehra
Carrie Menkel-Meadow
Max Minzner
Scott Moss
Eric Muller
Jaya Ramji-Nogales
Helen Norton
Elizabeth Nowicki
Paul Ohm
Michael O'Shea
David Opderback
Kristen Osenga
Rafael Pardo
Marcy Peek
Eduardo Peñalver
Robert Percival
David Post
Shruti Rana
Geoffrey Rapp
Neil Richards
Lori Ringhand
Alice Ristroph
Susan Scafidi
Paul Secunda
Jonathan Siegel
Jessica Silbey
Peter Smith
Charles Sullivan
Rick Swedloff
Steph Tai
Andrew Taslitz
Robert Tsai
Jenia Turner
Steve Vladeck
Spencer Weber Waller
Howard Wasserman
Melissa Waters
Frank Wu
Alfred Yen
Corey Yung
David Zaring
Timothy Zick
Michael Zimmer
Jonathan Zittrain

Ownership

Concurring Opinions is a
general-interest legal blog
operated by Concurring
Opinions LLC, a Pennsylvania
Limited Liability Corporation.

Blogroll

Above the Law
ACS Blog
Althouse
Balkinization
Becker-Posner Blog
BlackProf
BoingBoing
Chicago Law Faculty Blog
Conglomerate
CrimLaw
Crime & Federalism
CrimProf Blog
Crooked Timber
Discourse.net
Dorf on Law
Election Law
Emergent Chaos
The Faculty Lounge
Feminist Law Profs
43(B)log
Freakonomics Blog
Freedom to Tinker
Google Blogoscoped
How Appealing
Ideoblog
Info/Law
Instapundit.com
Juris Novus
Jurisdynamics
Law and Humanities Blog
Law and Letters
Law Librarian Blog
Legal Profession Blog
Legal Theory Blog
Legal Times Blog
Leiter Reports
Brian Leiter's Law School Reports
Lessig Blog
Madisonian Theory
Media Law Blog
Mirror of Justice
The Moderate Voice
National Security Advisors
Opinio Juris
Point of Law
PrawfsBlawg
ProfessorBainbridge.com
Property Prof Blog
Red Tape Chronicles
The Right Coast
Schneier on Security
SCOTUSBlog
Security Dilemmas
Sentencing Law and Policy
Simple Justice
Sivacracy.net
The Situationist
Susan Crawford
TalkLeft
Talking Points Memo
TaxProf Blog
Tech & Marketing Law
Truth on the Market
Volokh Conspiracy
WorkPlace Prof Blog
WSJ Law Blog
Wonkette
The Yin Blog


© Concurring Opinions

Powered by WordPress