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Why Conservative Justices Aren’t True to the Constitution
Remember when we were all celebrating Trump’s election because he would have the opportunity to nominate people who were supporters of the traditional understanding of the Constitution? How we were relieved that at least the Court would be dedicated to maintaining the rule of law and the foundations of this country?
As often happens when conservatives are nominated, the results historically have been a mixed bag.
Republicans seem to have a long history of picking justices who let us down. I finally saw a reasonable and insightful explanation of why we have repeatedly seen these outcomes, and what can be done to turn things around.
Senator Ted Cruz, in his book, One Vote Away: How a Single Supreme Court Seat Can Change History, provides a modern history of justices who were selected, and how close this country has come to losing on key issues. Cruz has a great deal of insight on this topic: out of law school he was a law clerk for Chief Justice William Rehnquist; he went into private practice with a small firm that specialized in constitutional and Supreme Court advocacy; was appointed solicitor general of Texas under Greg Abbott; wrote over 80 U.S. Supreme Court briefs and argued before the Court nine times. Throughout the book, he explains how justices who were thought to be certain conservatives did not rule conservatively. At the end of his book, he provides what I think is a brilliant assessment of the errors in judgment that have been made in selecting justices, and how Republican presidents can make better selections in the future.
First, Cruz points to the obvious:
Republicans nominees only shift in one direction: they shift to the left. ‘Evolving’ is the polite term. And it is because the pressure on a Supreme Court justice to move to the left is enormous. The press coverage consistently praises justices who vote with the left, heralding them as courageous heroes.
So how does a President get around the justices facing this inevitable pressure? Cruz lists some of the criteria a President should consider:
The justices who have been most faithful to the Constitution include Justice Scalia, Justice Thomas, my old boss Chief Justice Rehnquist, and Justice Alito. All of them share important characteristics: Before they were nominated, each of those justices had a long and demonstrated record. Each had served in the executive branch, each had defended conservative or constitutional positions, and, critically, each had been roundly criticized for doing so. (Italics are mine.)
Don’t these criteria seem obvious? Each one of them is critical to the performance of a Supreme Court justice. And yet when you look at the record of people like Anthony Kennedy, Sandra Day O’Connor, or John Roberts, they were sadly lacking in at least one or more of these criteria.
Ted Cruz also points out that the absence of these characteristics can be disastrous:
Typically, they have little to no record, they have assiduously avoided controversy, they have refrained from taking difficult stands, and they have avoided subjecting themselves to the harsh light of criticism. They have been timid where they could have been bold or assertive.
In the coming years, when some Supreme Court justices die or simply retire, the stakes will be greater than ever. If we have a Republican president in office, he or she must demand the very best of the best to fill these positions on the Court. His selections must be courageous people, demonstrate a record of defying the Leftist agenda, and be prepared to be criticized and even ostracized in the social circles of Washington, DC.
They must be prepared to take on even more vicious battles than they ever have to save the future of our country.
Published in Law
I think it is more accurate to say that when a justice votes or writes a decision you don’t like they seem to be going in one direction. That is true from the Left as well, but given that I am a conservatarian I see a wobbly Leftist justice as merely “seeing sense”. Sadly the frequency of seeing sense from the Left is way too low.
I think it is too soon to rate President Trump’s three appointments. And if the court packing scheme is implemented it won’t matter.
It probably is too early, but we can learn from how the justices do respond to future cases. I don’t like the title of the OP much. Might change it.
Cruz presents very interesting criteria in a day when lack of a paper trail is a critical factor weighed by politicians as a deterrent to being Borked or receiving a high-tech lynching. Politics is the art of the possible, but I wish that some of our legislators would work a little harder to make things possible.
Yeah, I haven’t read Cruz’s book yet but “Justice on Trial” (Mollie Hemingway/Carrie Severino) gave an excellent explanation of how “conservative” judges shift leftward after they become one of the “exalted nine”. In recent times, I suppose the worst of these was David Souter; before that, it would, undoubtedly, have been Earl Warren and William Brennan.
Of course, it was never supposed to be this way. Our founders envisioned a legislative branch that was strong, independent, and representative of those who sent them to Congress. (HA!) Instead, we have a weak-kneed, pandering, posturing bunch of idiots; all whose votes can be sold to the highest bidder and perfectly content to let laws be written by the Supreme Court and Federal Bureaucrats.
As Rodin noted above, the court-packing scheme will provide the final destruction of our founders’ carefully crafted separation of powers. In the future, we will probably see a nightly newscast along the lines of: “Today, by a vote of 50-49, the Supreme Court ruled that…”.
Cruz’s observation about Bork was intriguing; he thought that if Bork could have just shaved or trimmed his beard, he wouldn’t have been so off-putting. We’ll never know. Thanks, @joelb
It was interesting to learn that some justices were nominated because a person lobbied for them as a favor. I think Warren lobbied for Brennan, even though his record was limited. Arm twisting should not be involved. And let’s hope that the Court is not packed so that we can make another effort to make things right. Thanks, CA.
After Ted (“Lion of the Senate”) Kennedy’s intial statement about Bork (“…women would be forced into back-alley abortions…”), I think that Bork could have gotten a complete facelift and it wouldn’t have made any difference.
As usual, the Republicans were caught completely flat-footed by the antics of the Democrats. And, it didn’t help when Bush the Elder quietly advised Bork to give up his nomination. As Hemingway/Severino point out, the treatment of Bork did serve to give the Republicans some spine, which helped with the confirmation of Kavanaugh.
Hmm – Interesting coming from Cruz. When he first started letting his own beard grow I thought it looked pretty ragged, but now it’s ok. Lincoln was the first Republican to make the change. Perhaps we need some ladies focus groups to advise our conservative politicians on grooming and fashion.
Cruz’s beard may have been ragged but he wasn’t up for the Court! ‘-)
Another way of saying it is that any judge worth nominating is one Republicans will have to fight for. Bipartisanship is surrender to liars and scoundrels.
I agree. I can’t imagine that there will be a future where any Dem will support a genuine conservative for SCOTUS. We’ll be on our own, Aaron.
@cacrabtree :”Our founders envisioned a legislative branch that was strong, independent, and representative of those who sent them to Congress. (HA!)”.
This is the problem. My senators in Oregon aren’t even that loyal to the state. They are loyal to a leftist ideology. If you’re a liberal in Oregon or New York or elsewhere they represent you, but If you’re the average working Oregonian they find you deplorable. How did the destruction of downtown Portland serve Portlanders or Oregonians.? It was a disaster. Our Senators, Democratic representatives, Governor, Mayor and city counsel refused to condemn the riots and in some place praised them. They did so because they serve their leftist constituents.
I still find the support of that destruction mystifying, St. Christopher. Does anyone in the legislature feel accountable to anyone, even the Leftists? I think you’re right: it’s all about the ideology. Terrible.
I reject this assertion, if by “you” you refer to the Ricochet base: the conservatives.
You gave an accurate of description of precisely those who oppose us.
The fact that they think this way is an example of why they oppose us: they are motivated by special group interests, rather than the public interest.
In other words, it will have to be a hill to die on.
Styles change, even with beards.
Principles.
I know it’s popular to say that Scalia was a strict constructionist, but my readings of his cases seem to have a strong bent for bolstering government power rather than individual freedom. For instance in the “Bong Hits for Jesus” case Morse v. Frederick, (551 U.S. 393 (2007)), Scalia voted with the majority to say that schools can control speech out side of school. Why? Because the government’s reach is not to be limited, I guess. I didn’t find this mind set to be a one time case, either. Thomas has been more consistent in defending freedom, though as his concurrence in this very case shows, he can be weak too, arguing that since parents entrust their children to the school that in loco parentis applies and therefore the school can control speech outside of school. According to the majority, there is no escape from the school’s power, except to not send your children to school, which the government has made economically difficult with their control of the education market.
I’d like to see more opinions that emphasize freedom and less promoting government power. I suspect even Cruz wouldn’t be strong enough for me in that regard, were he to be appointed.
Your argument has a false implicit premise:
If a law, strictly construed, gives government a certain power, then it is true by definition that a strict constructionist decides in favor of that power.
If you want to give a valid argument, you must give examples of decisions that were inconsistent with strict construction of the law, irrespective of whether they bolstered government power.
You also present a false choice, between bolstering government power and bolstering individual freedom.
An instance of giving government a power whose ultimate purpose is to bolster individual freedom may have intermediate results that restrict individual freedom.
The valid argument is that the Constitution recognizes free speech. It doesn’t say unless you’re a minor or forced to enroll in a school.
Susan, thanks for the reminder about this book by Sen. Cruz. I’m going to have to get it from Audible, if it’s available.
On the main thrust of the OP, I think that it is correct to note that SCOTUS Justices have generally drifted left, rather than right, over the past 50 years or so. There may be something inherent in the position that drives such a change, in the temptation to re-make the country as you wish it to be.
The split in the Court probably makes it more likely that conservatives will be complaining about decisions, rather than folks on the Left. I think that there was a nominal conservative majority of 5 on SCOTUS since Justice Thomas was appointed in 1990, until last year, when the appointment of Justice Barrett made it a nominal conservative majority of 6.
People have the impression that the Justices vote as blocks, but that’s not really true. It is often true in close, contentious cases, but each Justice has his or her own view on most issues, so there is some inherent variability in outcomes.
However, when a Left-leaning Justice votes with the conservative majority, it’s not usually notable, because the conservatives typically had the majority from 30 years. It was unlikely for one of the Leftist Justices to be the swing vote on any particular issue. So any decision favorable to the Left generally required the defection of at least one typically conservative Justice.
The extent of conservatism of individual Justices varies, of course. Kennedy and O’Connor were unreliable, though usually on different issues. Roberts now seems to be the least reliable conservative vote, though it’s still early to be judging either Gorsuch or Kavanaugh, and Barrett is brand-new on SCOTUS.
Now, that wasn’t so hard, was it?
[TAGS: Trying for Light-Hearted Humor]
Everything you say is true, but I get the feeling that Roberts is looking over his shoulder every time he votes because of the threatening letter that the Five Stooges sent to him last year.
In a sane America, Roberts should have told them to put that letter where the sun doesn’t shine but, as Rodin noted, all this talk about court packing could change the entire conversation.
Thanks so much for filling in the picture, Jerry! I agree with all you say. Only time will tell about the newest judges.
According to the mainstream media. I think those of us who understand that only the right judicial philosophy can make a SCOTUS Judge worthy of the name “conservative”: have recognized a nominal conservative majority only since Barrett.
In my view they’ve drifted away from the center, where there exist no classes for government to punish or give gifts to, because the Constitution doesn’t recognize classes based on any of these attributes:
and only accepts the class “citizens” as a temporary administratively necessary compromise of the principles of the Declaration, which refers to ‘all Men’, not ‘all Americans.’
“Drifted away from the center” to the perimeter, where there is a right, a middle, and a left. A spectrum, based on which classes should be favored or punished, by twisting the classless Constitution. The middle of the spectrum is on the perimeter, just as far from the rule-of-law-not-of-men center as the left or the right is! The middle of the spectrum has a formula for granting class gifts and assessing class penalties to pay for them that attempts to be “equitable” and pragmatical. Government has the right to confiscate as much as it pleases from the capitalist class, but needs to ensure that the effect on GDP is optimized, according to some expert calculations.
This is an interesting take I haven’t heard, Mark. I may just try to make an illustration of it to help me clarify for myself. I will mull it over and try to get more clear on its implications. Thanks.
PLEASE DO MAKE THE ILLUSTRATION! I can’t figure out how to draw a picture and post it here. I want to draw MY view of the world every time anyone uses the words “left”, “center”, and “right” on Ricochet. Once a day on average. It drives me nuts. OK, fine…Even more nuts.
I think you understand but just in case:
Draw a circle.
Draw a point in the center and label it “Constitution”.
Now draw on the perimeter of the circle, on the left side, another point, and label it “Left”. Similarly annotate the “Middle” and the “Right”.
Label the whole perimeter “The Spectrum”, so as to make it clear that the Center is equidistant from EVERY point on the spectrum.
Now you have a picture of Camper’s view of the political world.
Don’t throw it out. But you may use it as a coaster for your wine glass if you haven’t yet received your adorable Ricochet coasters from my #1 Daughter’s e-business. Please allow three days for Pops to inform #1 Daughter that he has committed her to design and build an inventory of adorable Ricochet coasters.
That’s just what I imagined. I’ll see if I can draw it and post it here. Then again, I am no artist!
YaHOO!
(But…no pressure.)