…and civil rights:
The Supreme Court’s decision in District of Columbia v. Heller, upholding the Second Amendment right of individuals to own firearms, should finally lay to rest the widespread myth that the defining difference between liberal and conservative justices is that the former support “individual rights” and “civil liberties,” while the latter routinely defer to government assertions of authority. The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides.
I think that this is also an excellent example of how confusing and misleading, and useless really, the two labels are.
They’re (the labels) not useless, they are just sometimes applied outside their area of meaningfulness. I think this is particularly true about the Supreme Court. Politicians from the left have struggled for years to get these labels applied to the Court — and to judges in general. It hasn’t been hugely successful because the really salient characteristics of judges are not, I think, their political inclinations, at least so far. (Probably whether they think in general “the law is what is written” or “the law is what the legislature intended” is a more pertinent distinction, for example.)
Why has this been a goal of the left? It’s worth remembering that one of the left’s favorite tools in its struggle for power is to redefine the language. For example, they’ve been remarkably successful at redefining the word “right” to mean a right to get something (equal pay, free health care, equal outcomes in the pursuit of happiness) rather than its original meaning of a right to be free of something (restrictions on your speech, ability to carry a weapon, ability to make any private contract you wish). This is very useful, because we all agree “rights” are rather imperative, absolute goods, things in support of which quite non-democratic means are justified (e.g. the right to free speech means the majority must tolerate even the despicable speech of a nutcase). If free health care (say) is a “right,” and not merely a political goal, then all kinds of nondemocratic, drastic action in support of it is justified.
In the case of the judiciary, I think the left would like to change the language of the debate, so that it takes place within implicit agreement that the judiciary is a political branch like any other, like the legislature, and that it is therefore legitimate for the judiciary to be initiating legislation to some extent (cf. your earlier “Third Branch” comment), and that it is also legitimate under the “spoils” system for them to appoint judges for openly political reasons (and to oppose them for equally openly political reasons).
Consider the possibility that your distaste for the labels comes from the left’s persistent effort to apply them more and more broadly, to every aspect of public life, and many aspects of private life (nowadays even some of your private consumer choices are “liberal” or “conservative,” according to them). This is not new: the Soviets asserted that every aspect of life must be judged politically. Your success or failure as an athlete was political. Art was judged politically (giving us “Socialist Realism”). How science and engineering should be pursued was in the first place a political question. And so forth. As Jonah Goldberg’s book observes, the modern collectivist left is a fascist movement, meaning it seeks to have ideology permeate ordinary life through and through, so that each of us becomes meaningless except insofar as how he forms part of the greater social whole.
They’re (the labels) not useless, they are just sometimes applied outside their area of meaningfulness.
To paraphrase Jim Harris, they’re 90% useless. They’re so broad that they cannot help but be “applied outside their area of meaningfulness” in almost every case. More narrow and precisely defined labels would be far more useful.
the really salient characteristics of judges are not, I think, their political inclinations, at least so far.
At the trial level, that’s true. But by the time you get to the Supreme Court (or even the Circuit Courts of Appeal), political inclinations often control. I’ve had to read enough of those decisions to know.
Brock, they’re only broad because the left has succeeded in broadening them. They certainly didn’t start off that way. There’s nothing intrinsically broad about the labels. It’s their usage patterns that have become broad. But that has been a matter of deliberate effort, and it can be undone.
As for the SCOTUS opinions: I suggest you’re trapped by the language. You read these decisions as “politically governed” because your mental language suffers from the same overly-broad definition of “political” the left has succeeded in forcing on public discussion. Imagine for the moment that you have some weird partial aphasia, and can no longer understand the meaning of the words “conservative” and “liberal” or any similar word describing political inclinations.
Can you still describe the underlying reasons for SCOTUS decisions, using other terms? I think you can. And I think you’d find that you would have much clearer, sharper, and more meaningful distinctions between judicial philosophies. Keep in mind that stuff like “favors the rights of the accused over the majority’s legitimate interest in public order” is not intrinsically a “political” position. It’s just that the left has succeeded in making it so. (As for why they do so: because by turning everything into a political position, nothing is left as permanent, objective truth. It’s possible to state without fear of contradiction that we’ve always been at war with Eurasia.)
After all, you’re somewhat arguing the case yourself. You’ve just argued that the labels are “too broad” to be meaningful — so how can it be meaningful to try to identify “liberal” or “conservative” reasons for judicial decisions?
It seems to me the whole point of the supreme court is to constrain government. To me the 9th amendment is pretty clear. Bork seems to say it has no meaning. So I might be accused of being a liberal activist for reading between the lines (what unenumerated rights?)
The most severe problem seems to be federalism which only FDT had any hope of addressing. Ross Perot even explained it well (then acted like a nutcase.)
I hold a lot of conservative views but I don’t see any label that applies very well. Eh, irrational seems to fit a lot of the voters?