Who Can Really Say?

Orin Kerr posts, asking "Is the Supreme Court Conservative?".

I think it's a question we often ask and rarely answer well. In public discourse regarding the Court, the media and politicians throw "liberal" and "conservative" labels around too easily without either defining what they mean by the terms or offering any real analysis of the underlying case or the significance of the Court's reasoning. An example? The Texas sodomy case from last year, Lawrence v. Texas, resulted in a finding that a Texas law criminalizing same sex sodomy between consenting adults was unconstitutional. Liberal, right? But the majority opinion was written by Anthony Kennedy, a justice rarely accused of being liberal (or complimented with that term, for that matter). What about his reasoning? A "liberal" opinion might have created a "right to sodomy" but Kennedy didn't do that. His was more of an it isn't the government's business what goes on behind closed doors analysis, which is also consistent with some conservative principals.

But liberal and conservative are black and white shorthand for folks (like the press and like politicians) who speak in easy to digest answers about questions that are much harder than they'll ever admit to.

Beyond that, there are two things I think are pretty clear about the Court. First, today's Court has some members that are identified as "liberal" but none of them come close to the benchmarks that defined that term in the first place -- that is, none of them are liberal in the way Justices Brennan, Douglas, and Marshall were liberal. Second, even though in this sense the Court is more conserative than it was 30-40 years ago, the so-called conservative Court of today has done relatively little to roll back the many liberal decisions of that era. RPS, a commenter to Kerr's post, said:

Assuming the use of conservative is meant to mirror the Republican political agenda (along with the other requisite disclamiers), this Court has been pro-abortion, pro-affirmative action, and pro-gay rights. I don't think the Court should be defined by these issues any more than it should be defined by its federalism decisions, but I do think there is a large scale perception in the country that this Court has been very conservative, which I don't think is supported by what most consider to be conservative.

Finally, Kerr quotes Stephen Pomper in the Washington Monthly:

To the surprise of the legal left, the Rehnquist Court has refused to overturn Roe v. Wade and has broken new ground in protecting the civil rights of homosexuals. It has endorsed some forms of affirmative action. In last Spring's highly charged enemy detainee cases, it refused to write the executive branch a blank check for wartime detention powers. And even in its hypertechnical (and therefore less controversial) federalism cases, which concern the powers of Congress over the states, the Court has feasted less aggressively on Congress' legislative authority than might have been anticipated, contenting itself to snack on bits and pieces. In retrospect, liberal anxieties (including my own?see "The Gipper's Constitution," December 1999) about how far this Court would go in implementing the Reagan revolution are looking somewhat misplaced if not, on occasion, hysterical. [Emphasis added].

Credit goes to Pomper for his admission. In the end, liberal and conservative are poorly defined and reasoned terms that are much more difficult to apply than those generally using them will ever admit. They are the tools of political rhetoric and a glib media, and we can all look forward to hearing more of them, ad nauseum, as soon a vacancy appears on the Supreme Court.

[Linked to the Beltway Traffic Jam.]