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
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Responses (2)
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?
SCOTUSblog - January 25, 2006 at 12:10 pm
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