T Nation

Why Conservatives Care About Courts

A very insightful post from George Washington law professor Orin Kerr on one of the reasons conservatives tend to get so upset about judicial activism:

http://www.volokh.com/archives/archive_2008_05_18-2008_05_24.shtml#1202232563

[i][Orin Kerr, May 22, 2008 at 1:45am] Trackbacks
Why Do Conservatives Care So Much About the Courts?: The Rasmussen Reports ( http://rasmussenreports.com/public_content/politics/election_20082/2008_presidential_election/for_republicans_judicial_appointments_matter_more_than_iraq ) survey of public attitudes towards the courts demonstrates just how much Republican voters care about the Supreme Court:

"When it comes to how they will vote in November, Republican voters say that the type of Supreme Court Justices a candidate would appoint is more important than the War in Iraq. The latest Rasmussen Reports national telephone survey found that 44% of Republicans pick the economy as the top voting issue, 30% name judicial appointments, and just 19% pick the War in Iraq. . . . Just 7% of Democrats name judicial appointments as the most important of those issues."

The fact that Republican voters care a lot about the courts isn’t exactly news. The question is, why is that true? Why are conservatives so focused on - so obsessed with - the courts?

Let me paint with a very broad brush and offer my best explanation. The primary reason, I think, is the nature of the Supreme Court’s docket in the last fifty years. During that period, most high profile Supreme Court constitutional law decisions have considered whether to ban practices embraced by conservatives rather than whether to ban practices embraced by liberals. For conservatives - especially social conservatives, and especially religious conservatives - the question has been whether the courts will allow their views, not whether the courts will mandate them.

Think about abortion, school prayer, gay rights, flag burning, the death penalty - you know, the real ‘hot button’ issues. In each of these areas, a victory for the conservative side means that the political process is left unaltered. On the other hand, a victory for the liberal side means that the court intervenes and mandates that the majority preference - the generally conservative view - is out of bounds.

That’s generally the opposite of the experience for those on the liberal side of the political spectrum over the last few decades. For liberals, the key question usually has been whether the courts will mandate their views, not whether the courts will allow them. On most of the hot button issues, a victory for the liberal side means that liberals are saved the trouble of going through the political process. A loss doesn’t mean their view is not permitted, only that the issue is dealt with in the elected branches like most other issues.

I think this trend helps explain why conservatives today are much more focused on the courts than are liberals. Being told that the courts won’t let your views be law is a lot more painful and upsetting than being told the courts alone won’t win it for you. It’s partly loss aversion, I suspect, and partly the fact that constitutional decisions are much harder to reverse than legislative ones. Whatever the precise reasons, the cumulative experience of this happening year after year, Term after Term, starts to really hurt. It becomes a sore point, a raw wound. I think that goes a long way towards explaining why conservatives care significantly more about the courts.

If you’re unconvinced, consider some of the relatively uncommon hot-button cases when the usual valence is reversed. That is, consider a case asking the Court to ban a practice generally favored on the left. The obvious example: Race-based affirmative action. On the road to Gratz and Grutter, supporters of affirmative action weren’t unconcerned or ignorant about the Supreme Court’s involvement in the issue. Hundreds of thousands of affirmative action supporters were passionate and outspoken �?? they cared ( http://www.democracynow.org/2003/4/2/yesterday_the_supreme_court_heard_opening ), and they protested ( http://www.yaleherald.com/article.php?Article=1994 ), and they thought it was incredibly important. It was a really really big deal.

That’s just the kind of reaction you would expect when people feel that the Supreme Court might take away their right to set their own rules. And it’s a dynamic that in recent decades has been felt significantly more often on the right than on the left.[/i]

Good stuff, thanks BB. Interesting how liberals suddenly become strict constructionists when faced with legislation not in keeping with their vision of America.

"
Think about abortion, school prayer, gay rights, flag burning, the death penalty - you know, the real ‘hot button’ issues. In each of these areas, a victory for the conservative side means that the political process is left unaltered. On the other hand, a victory for the liberal side means that the court intervenes and mandates that the majority preference - the generally conservative view - is out of bounds. "

Er… The courts are going to mandate the people have abortions? That people be gay? That people burn flags?

Biased article. It has nothing to do with wanting there way of life protected, with the exception of 2nd amendment cases.

If Gay Marriage was the norm you’d better believe they’d be clamoring for some judicial activism.

[quote]Beowolf wrote:
"
Think about abortion, school prayer, gay rights, flag burning, the death penalty - you know, the real ‘hot button’ issues. In each of these areas, a victory for the conservative side means that the political process is left unaltered. On the other hand, a victory for the liberal side means that the court intervenes and mandates that the majority preference - the generally conservative view - is out of bounds. "

Er… The courts are going to mandate the people have abortions? That people be gay? That people burn flags?

Biased article. It has nothing to do with wanting there way of life protected, with the exception of 2nd amendment cases.

If Gay Marriage was the norm you’d better believe they’d be clamoring for some judicial activism.[/quote]

Orin Kerr is a libertarian. Think about it a little bit further… He’s saying the courts are banning the democratic process from setting a standard. It’s a blog entry by a law professor, so it’s very process-oriented - and I think it’s correct.

[quote]Beowolf wrote:

If Gay Marriage was the norm you’d better believe they’d be clamoring for some judicial activism.[/quote]

Incorrect - how do I know? Even the most zealous traditional marriage advocates think we should amend the Constitution to get their policy to be supreme law of the land, not have a panel of oligarchs declare it so.

Amend the Constitution, you say? You mean do all the hard work of democratic action? Changing people’s minds and getting a majority vote?

Why, it’s positively unprogressive.

I’m not sure I agree with his viewpoint, but it does have some merits.

Personally, I’m more concerned that a judge is a constructionist. (Is that the right term?) After all, the courts are a person’s last resort to have the law upheld. The people have input into the law creation process by electing representatives. The people do NOT have any input when judges are appointed.

There was a very famous case down here in Florida in which the law was very clear. The situation being debated only came within a hair’s breadth of the law’s coverage, but didn’t quite make it. The Florida Supreme Court, in an amazing act of hubris, decided that the law could be applied anyway, just because it seemed like a good idea in this one case.

Can you imagine what would happen if all the courts decided to selectively apply the law at their whim? This was just outrageous IMO.

Fortunately the U.S. Supreme Court thought it was outrageous too and overturned the ruling with a verbal slap to the Florida Court, saying that they (the U.S. Supreme Court) saw absolutely no basis for the Florida decision, but inviting the Florida court to clarify themselves. (There was no response from Florida.)

So being fairly conservative, I feel I don’t have to worry about how issues are treated in the courts if I know the judge is a strict constructionist.

[quote]thunderbolt23 wrote:
Beowolf wrote:

If Gay Marriage was the norm you’d better believe they’d be clamoring for some judicial activism.

Incorrect - how do I know? Even the most zealous traditional marriage advocates think we should amend the Constitution to get their policy to be supreme law of the land, not have a panel of oligarchs declare it so.

Amend the Constitution, you say? You mean do all the hard work of democratic action? Changing people’s minds and getting a majority vote?

Why, it’s positively unprogressive.

[/quote]

So let them amend it. In the mean time, the current constitution will be interpreted as it is. And if that interpretation is that Gay Marriage is A-OK, they have to live with it until they get their amendment (that will never happen).

[quote]Beowolf wrote:

So let them amend it. In the mean time, the current constitution will be interpreted as it is. And if that interpretation is that Gay Marriage is A-OK, they have to live with it until they get their amendment (that will never happen).[/quote]

What exactly is the functional difference between an amendment and deciding that the current document means something that it hadn’t meant for the previous 100 years it was being read and interpreted?

[quote]yorik wrote:
I’m not sure I agree with his viewpoint, but it does have some merits.

Personally, I’m more concerned that a judge is a constructionist. (Is that the right term?) After all, the courts are a person’s last resort to have the law upheld. The people have input into the law creation process by electing representatives. The people do NOT have any input when judges are appointed.

[/quote]

And this is a VERY good reason to care about the judges. Or the judicial branch in general. I agree with parts of the article. But you just stated the bottom line regardless of the article or not.

Basically, it comes down to the fact that the People-- that is, the portion of society that founded this government and ostensibly control it-- are left completely out of the judicial branch. This is generally a good thing since the judicial branch was intended to be arbiter in our system, but it is an incredibly bad thing when you have judges that wish to be senators. Or apply precedent very very broadly (or in some cases not at all). THAT is the job of the People (or their representatives). Judges are judges, not lawmakers and not people that should expand the purview of the judicial branch beyond what it was originally intended to be.

Legislation from the bench is not democracy. It defeats the whole purpose.

[quote]BostonBarrister wrote:
Beowolf wrote:

So let them amend it. In the mean time, the current constitution will be interpreted as it is. And if that interpretation is that Gay Marriage is A-OK, they have to live with it until they get their amendment (that will never happen).

What exactly is the functional difference between an amendment and deciding that the current document means something that it hadn’t meant for the previous 100 years it was being read and interpreted?[/quote]

Precisely. Beowolf, regardless of the particular issue and aside from gay marriage completely (please), you must admit that the end outcome of both actions–1) Constitutional amendment or 2) Judicial reversal of previous precedent or interpretation–is the same. I have to admit I agree with Barrister here.

The only difference is that in one case the democratic process is followed and leads to the reinforcement of democratic ideals, and in the other case the People are left completely out of the decision and democratic ideals are openly flouted.

Courts MUST deal on precedent, or previous interpretations, to be successful. It is Congress’s job to create new laws or change interpretation of current laws. That ultimately means it’s OUR job, not theirs.

[quote]BostonBarrister wrote:
What exactly is the functional difference between an amendment and deciding that the current document means something that it hadn’t meant for the previous 100 years it was being read and interpreted?[/quote]

Contracts should not contain ambiguity. If the interpretation of a contract changes from one decade to the next (for whatever reason) then the document has no merit.

Personally I think an Amendment to define marriage is not the way to go. Government has no right to tell individuals how to engage in contract. That is essentially what marriage comes down to. If religious institutions have an issue with it then they don’t have to perform said marriages.

[quote]
BostonBarrister wrote:
What exactly is the functional difference between an amendment and deciding that the current document means something that it hadn’t meant for the previous 100 years it was being read and interpreted?

LIFTICVSMAXIMVS wrote:
Contracts should not contain ambiguity. If the interpretation of a contract changes from one decade to the next (for whatever reason) then the document has no merit.[/quote]

That’s a nice aspiration, but you’re essentially saying that no contract that’s more than a few words has any merit. Given the inherent limitations of the English language, and the fact that the meanings of words themselves drift over time, that’s an impossible standard.

[quote]LIFTICVSMAXIMVS wrote:
Personally I think an Amendment to define marriage is not the way to go. Government has no right to tell individuals how to engage in contract. That is essentially what marriage comes down to. If religious institutions have an issue with it then they don’t have to perform said marriages.[/quote]

I don’t think it should be necessary either, but that’s the logical reaction to a judicial dictat.

Aside from that, the distinction between marriage and a series of contracts that provides the exact same relationship and effect is that the latter isn’t allowed tax benefits or to pass on something like Social Security, so it’s not really about the contractual rights - it’s about the money…

[quote]BostonBarrister wrote:
That’s a nice aspiration, but you’re essentially saying that no contract that’s more than a few words has any merit.
[/quote]
There is no room for interpretation. Take the meaning absolutely and amend where necessary.

The language that the constitution was written in hasn’t changed so much that is should make us question its meaning.

Why, for instance, is Shakespeare understood more than the content of the constitution?

[quote]Beowolf wrote:
"
Think about abortion, school prayer, gay rights, flag burning, the death penalty - you know, the real ‘hot button’ issues. In each of these areas, a victory for the conservative side means that the political process is left unaltered. On the other hand, a victory for the liberal side means that the court intervenes and mandates that the majority preference - the generally conservative view - is out of bounds. "

Er… The courts are going to mandate the people have abortions? That people be gay? That people burn flags?

Biased article. It has nothing to do with wanting there way of life protected, with the exception of 2nd amendment cases.

If Gay Marriage was the norm you’d better believe they’d be clamoring for some judicial activism.[/quote]

That is exactly right. The majority in the US has conservative values and do not support the liberal media or Hollywood elite. So they must try and get their agenda pushed forward against the will of the people by appointing liberal judges who care more about their agenda than upholding the constitution or law. The California supreme court ruling to reverse the will of the people on gay marriage is a prime example.

[quote]Lorisco wrote:
That is exactly right. The majority in the US has conservative values and do not support the liberal media or Hollywood elite. So they must try and get their agenda pushed forward against the will of the people by appointing liberal judges who care more about their agenda than upholding the constitution or law. The California supreme court ruling to reverse the will of the people on gay marriage is a prime example.

[/quote]

I’ve yet to meet anyone, conservative or liberal, who is not very religious who is still anti-gay marriage.

We do not live in a democracy. We live in a republic. The courts CHECK the people, because sometimes, the people are fucking stupid.

I have a feeling some of you would have raved against Brown V B.Ed. That was some pretty rough activism wasn’t it?

The courts exist to stop legislation from going against the constitutions values.

EDIT: The majority of Americans are Conservative my ass. We get a near 50/50 split each election, and conservatives vote more than liberals in general. We have a nation that is praying for a welfare state. We were the most progress (culturally) nation in the world until recently. Stop pretending like it’s only the “liberal media” and the “Hollywood elite” that are liberal when that is obviously not the case.

[quote]Beowolf wrote:
The majority of Americans are Conservative my ass. We get a near 50/50 split each election, and conservatives vote more than liberals in general. We have a nation that is praying for a welfare state. We were the most progress (culturally) nation in the world until recently. Stop pretending like it’s only the “liberal media” and the “Hollywood elite” that are liberal when that is obviously not the case.[/quote]

This whole “liberal” versus “conservative” polarization is a load of shit in my opinion. There are at least four variations on the liberal-conservative theme. Somebody once argued (I forget who and where) that politics covers basically two broad areas: social issues and economic issues. It’s possible to be socially liberal, and conservative economically (my personal stance) as well as vice versa. In fact, the liberal-liberals and the conservative-conservatives might actually be fairly few in number.

[quote]
BostonBarrister wrote:
That’s a nice aspiration, but you’re essentially saying that no contract that’s more than a few words has any merit.

LIFTICVSMAXIMVS wrote:
There is no room for interpretation. Take the meaning absolutely and amend where necessary.

The language that the constitution was written in hasn’t changed so much that is should make us question its meaning.

Why, for instance, is Shakespeare understood more than the content of the constitution?[/quote]

That’s not the point. The meaning of the Constitution is understood just fine (aside from arguments over exact intent of the multiple authors in certain areas, particularly the 1st Amendment) - it’s the arguments about what it could mean that get put into the “interpretation” bucket. Kind of like graduate theses on Shakespeare, to keep with your comparison.

It’s fairly uncontroversial to say that no one in 1870 intended to approve something that would require the result that the legislature had to create a benefits package for same-sex couples and refer to it as marriage - and that fact should settle this issue.

There may be questions at the margins, but certain things are obviously not there - and that still doesn’t stop activist judges from asserting them…

Two words.

Elastic clause, mother fuckers.

Ok, four words.

[quote]Beowolf wrote:
Lorisco wrote:
That is exactly right. The majority in the US has conservative values and do not support the liberal media or Hollywood elite.

So they must try and get their agenda pushed forward against the will of the people by appointing liberal judges who care more about their agenda than upholding the constitution or law. The California supreme court ruling to reverse the will of the people on gay marriage is a prime example.

I’ve yet to meet anyone, conservative or liberal, who is not very religious who is still anti-gay marriage.

We do not live in a democracy. We live in a republic. The courts CHECK the people, because sometimes, the people are fucking stupid.

.[/quote]

So the people are stupid, but a few judges are smart and never act inappropriate or make decision based on other things besides the law and the constitution? Bullshit!

Judges are not elected and therefore have no accountability. This is ruling class mentality. You must be a Hillary supporter because she also believes that everyone except her is to stupid to run their own lives.

Listen son, the price of freedom is that people have the right to make stupid decisions and screw things up. That is why people are tried in court by a jury of their peers and not a jury of fat old biased judges.

[quote]Beowolf wrote:
Two words.

Elastic clause, mother fuckers.

Ok, four words.[/quote]

The Elastic Clause of the Constitution refers to the Necessary and Proper Clause that gives Congress its powers for carrying out its duties. You know, the scope of legislative powers to make law.

Beowolf, stop while you’re ahead.