A couple of reactions to two posts from liberal bloggers on the recent Supreme Court race. First, Ben Brothers makes some sense. In recent days, both the outgoing incumbent Justice Louis Butler and Chief Justice Shirley Abrahamson were were quoted as saying that there is no such thing as a "conservative" and "liberal" justice. These statements are implausible on their face. They would require one to believe that all of the ideological energy behind both judicial elections and appointments to the bench are expended in vain.
This doesn't mean that liberal and conservative justices merely vote in accordance with their policy wishes. All judges - at least since Bill Douglas left the Supreme Court - view themselves as constrained in some way by the law. One of Justice Butler's occasional indulgences when he believed that the law compelled an undesirable result was to write an essay on why the law was wrong. We can argue about the propriety of that sort of thing but it does tend to illustrate that even someone with a fairly expansive view of his role did not regard it to be unlimited.
Justice Butler was also quoted as saying that "[w]hen they say 'activism,' that's just a pejorative people throw out when they disagree with your decision but they can't or won't explain why ...." Of course, that is a pejorative in of itself. Some of us explained in great detail why we disagree and that the essence of our disagreement often had to do with the need to reconcile judicial review with democratic rule - something that a few scholars argue can't be done. The point that we made was that the court had adopted rules about equal protection, views of its supervisory authority, methods of statutory and constitutional interpretation and approaches to empirical evidence that expanded its discretion in a way that impinged upon the prerogatives of the other branches of government.
When Brothers suggests that these arguments are not well taken because conservative judges are more likely to strike down laws or overrule precedent, he is at least engaging the argument rather than saying that we shouldn't have it. (For a variety of reasons beyond the scope of this post, the stats he cited don't support his side of it; but that' another matter.)One of the burdens of some of the stuff I wrote and said during the campaign was to illustrate that philosophy matters. The belief of some that we ought to pick the judge with the better resume is, in my view, wrong. There may have been a time in our legal culture when that was true but it is not today.
Brothers wants to have that debate about philosophy. Good for him.
Paul Soglin, however, wants to chase the Bildeburgers. John Fund writes a piece extolling, as one might expect a conservative to do, the results of last Tuesday's elections. Soglin wants to follow the money.
It really isn't hard. Given the impact of the court's decisions, people who are affected by them want to be heard. Those who believe that they are better served by a liberal court - the plaintiff's bar, casinos, WEAC, etc. - spent money to influence the election. Those who feel that they are better served by a conservative one - business, the pro-life community, etc - did the same thing. I would argue that the conservative groups were largely defensive. They were more concerned that the court not interfere with the political processes than it reach any particular substantive result. But even if you don't buy into my characterization, it's not hard to figure out who was playing and why.
Maybe it would be better if this did not happen. I would suggest to you that a court adopting a more limited view of its authority is going to attract less attention than one that wants to change the face of the state.