What Is a Conservative Judge?

By Michael Kinsley

Supreme Court confirmations have become a festival of code words. One of the most confusing is "conservative." What is a conservative judge? In fact, this can mean three very different things.
 

  • It can mean a strong belief in the principle of stare decisis, or respect for precedent. Problem: Does that mean that a conservative judge must rule in favor of upholding all of the liberal rulings of the 1960s and 1970s? Even though many of them overturned earlier precedents?

  • Conservative can mean a narrow view of the Constitution, especially the Bill of Rights: Justices appointed for life should be modest in their ambitions. They should stick to the "original meaning" of the document, avoid "activism," and be slow to overturn the workings of the democratic branches. Problem: Many specific items on the conservative agenda violate this principle. Conservatives have been saying that judges or justices ought to overturn health care reform. They cheered when the court decimated the campaign spending laws. They want courts to outlaw affirmative action. They want to use the Fifth Amendment's ban on government taking "property" without due process of law, in order to forbid a wide variety of government activities.

  • Conservative can mean simply judges who use their power to impose a conservative political agenda. Problem: This would be a gross violation of the other two alleged principles.

Another confusing word is "ideology." This can mean a political philosophy or a judicial philosophy. A judicial philosophy means a theory about how judges ought to go about deciding the big policy issues that come before them. A political philosophy is what you'd like them to decide. Conservatives believe that they have a coherent judicial philosophy and liberals either don't have one or ignore the one they have in favor of simply using judges to impose their political philosophy on an unwilling nation. They are giving themselves too much credit. They don't have one either. Words like "restraint" and "originalism" don't add up to a coherent judicial philosophy, let alone one that conservatives are willing to live by themselves.
 
Since they don't control Congress or the White House, conservatives are avoiding the term "conservative" as they gird for battle over a replacement for Justice Stevens. Instead they say "mainstream" or "centrist." But this resolves none of the contradictions in their general position on Supreme Court nominees. Do they want someone who respects precedent, or someone who will vote to overturn Roe v. Wade? Do they want an "originalist," or do they want to poison President Obama's health care victory? Do they really believe in "judicial restraint," or do they want "activism" in their own favor?

This article available online at:

http://www.theatlantic.com/politics/archive/2010/04/what-is-a-conservative-judge/38786/