Conservatives vs. Liberals
posted by Gerard Magliocca
Orin Kerr recently wrote a thoughtful post over on Volokh about what divides liberals from conservatives with respect to the role of judges. He argued that in cases where the standard legal materials are pretty evenly balanced between competing arguments, liberals believe that judges should (and are entitled to) make their decision based on policy considerations. Conservatives, on the other hand, take the view that the side with the stronger legal arguments should prevail. This is an oversimplification of what Professor Kerr said, but I think it fairly states the gist of his analysis.
I have a slightly different take. Basically, I would say that liberals embrace a common-law view of constitutional judging whereas conservatives take a civil law perspective. Let me explain.
While there is no single model of common-law judging, some traits are typical of that interpretive method. First, common-law judges believe (and are fond of the fact) that the law evolves as facts and values change. Second, they are enthusiastic about looking at any source of authority (other state decisions, law review articles, the Restatement) to reach their decision. Third, they are comfortable with making policy arguments when the legal materials are indeterminate. All of these ideas are present (to some extent) among judges or academics who are self-identified liberals.
In my view, conservatives reject these concepts because they think that decisions should be more closely tied to the underlying source of authority–constitutional or statutory. This makes these judges and academics skeptical of judicial evolution, does not easily allow for the consultation of outside sources (e.g., foreign law), and limits an appeal to policy considerations. Instead, there is a greater emphasis on textualism and structural analysis. What I find interesting about this is that it resembles the conception of a European civil law judge. (The only distinction is that conservative judges like using history, whereas a typical civil law judge would not.)
I wish I had a punch line for this post, but I don’t.
May 18, 2009 at 3:01 pm
Posted in: Constitutional Law
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Responses (1)
Orin Kerr - May 18, 2009 at 9:42 pm
With the caveat that I don’t know much about the civil law tradition, this sounds basically right to me. Cf. Scalia’s “A Matter of Interpretation”
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