Why "Conservative" Judges aren't, and why "Liberal" Judges are. And why liberal angst over conservative judges is misplaced and not all that real, while the opposite is not true.

 Thomas Aquinas, who wrote on Natural Law. Liberal politicians and pundits like to imagine that a "conservative" justice means somebody like Aquinas, but it doesn't.

There is, on Reddit, a thread in which a self declared liberal lawyer (and most lawyers declare themselves to be that, whether they are or not) admits that he just isn't worried about Kavavnaugh.

Truth be known, probably few are.

For all the hoopla, feigned tumult, and shouting about it, the truth is that there's a huge difference between "conservative" and "liberal" judges and justices, and political liberals know that.  Moreover, they know that they don't really have to worry about conservative jurist doing something philosophically conservative.

Liberal judges are politically and philosophically liberals in the modern "progressive" sense.

Conservative judges are judicially conservative, but whatever their personal views are, as jurist they are not politically or philosophically conservative.  Or, if they are, they don't apply conservative philosophy by making it law.  Liberal jurist do.

And, indeed, that's why political liberals don't really care all that much about the courts as political issues, but political conservatives do.

For the most part, the biggest thing that political liberals really have to worry about, in the context of a modern judicial conservative being appointed to the court, is that there will be a majority that defers to the legislatures and the people.  That makes work for liberals, and liberals are well aware that a lot of "progressive" ideas are highly unpopular with average voters, let alone likely voters, but that's the fact of it.  Put another way, if the Supreme Court touched Roe v. Wade or Obergefell, all that would really mean, most likely, is that the Court would say "well. . . that's the sort of thing we don't decide as the Constitution doesn't say anything about it. . . take it up with your state legislators. . . "

Not exactly the end of the world, in spite of the way the way it is so often presented by liberals.

Put another way, modern conservative jurists aren't going to do anything in regards to a woman's "right to choose" or "reproductive rights". They would, at most, say "not our field, take it up with the voters".  Liberals do indeed fear that, as they fear that their ideas aren't all that popular with the voters.  But they will not do what liberal jurists do, which is to declare what must be done and make that the law.

And that is what liberal jurist do. They take their philosophical and political views and declare them to be the law.   That is what happened in Roe v. Wade and that's what happened in Obergefell.  Basically, in those cases, the Supreme Court made into the law what the liberal justices view of what the law ought to be.  Put the way Thorogood Marshall put it, they determined what the law ought to be, in their view, and decided to let the people catch up with it.

But it could work both ways, which is the irony of the Liberal Angst.

 Where conservative judges feel that the answers really ought to come from. . .ballot boxes.

It would be possible, albeit extraordinary unlikely, to appoint conservative jurists who were political and philosophical conservatives and who were prepared to act on it.  That won't happen, but the fact that it won't shows how the liberal position is hypocritical and the balance of arguments is, moreover, highly misplaced.

If this were to occur you could appoint, for example, the handful of conservative jurists or legal academics who were natural law conservatives and have a view of what the ultimate law is, just as liberal judges have a view of what the ultimate law ought to be.

Let's consider Roe v. Wade again.

In a modern context there is, in spite of what people whine and cry about, about 0 chance that any Supreme Court is going to reverse Roe.  Roe v. Wade is mostly about a right to privacy.  Where it may be modified, in a modern context, is on the bright lines it makes on weeks of pregnancy, which has always been scientifically suspect at best.  A court could uphold Roe's legal basis completely but, at the same time, find that the scientific and medical views on it are so obsolete that abortion was no longer sanctioned as a right by it at any point.  As a court could do that, a court could certainly move the decisions bright lines or modify them, which is widely regarded as not only likely, but frankly quite proper, by nearly everyone.

But what the court will not do is to make an overarching philosophical leap into the nature of life and what life counts and why.  It's not impossible to imagine that, and perhaps the Court should be bold enough to do that, but it won't.  At the very most you might imagine the Court stating that it was clear that life is viable far earlier than the Court had imagined in 1973, and that therefore it couldn't really tell when it was viable, and therefore it would err on the side of life and find abortions violated the right to be secure in your person, infants having that right as much as adults.

Indeed, such a finding would actually be consistent with Roe. Roe itself recognized that such a right existed, but found that it didn't exist early on in the case of the fetus but did in the mother and therefore it was throwing the weight to the mother. That's the part of the decisions, as noted, that' has always made people queasy as it frankly doesn't make very much sense.

But what won't occur is to have a Court declare that a right to your life is a natural right trumping everything else, at least for the innocent, which would be to find a right beyond which we normally conceive of it as being. Although only barely. Because that's a natural law concept it sounds familiar to us in a way, and it should, as it's basically what the framers of the Constitution set out as a natural right in the Declaration of Independence when they stated:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That's a Natural Law declaration and it recognizes such a right.  As the concept to a right to life is still very  familiar to us, and as it finds expression among liberal and conservative justices in other areas, such as the Constitutionality of the death penalty, perhaps this musing isn't as far off as stated here.

But if we take the topic on to something like Obergefell we can really see where the difference between modern "conservative" justices and what a true conservative justice, the mirror image of a liberal justice, would be.  The declaration that same sex marriage is the same as heterosexual marriage was manufactured out of whole cloth with no basis in the law at all, the creation of liberal justices concepts of how the world and the law ought to be, rather than how it is.  By the same token, a truly conservative judge could write that natural law had created them "male and female" and that an institution endowed by its very nature with a recognition of that fact, and that therefore no law could be made to contravene or redefine that.  That would be much beyond what any conservative justice would do today.  If the question decided in Obergefell should suddenly reappear in the Supreme Court with five conservative justice, they might conceivably reverse it, but just to send it to the states. They wouldn't overturn any legislative act recognizing it.  But a Natural Law conservative theorist could.

Indeed, a Natural Law theorist and a modern liberal justice would actually recognize each other in that approach.  It wouldn't worry about the written law or the written Constitution, but rather some higher goal of how the law ought to be.

And that's the real difference and why its the case that liberals, in spite of their complaining, don't really care that much about the Supreme Court at the polls. They can still go to the polls and campaign, and they know that.  At most, conservative jurists just send things back to the ballot, they don't decide the issue with attempted philosophical finality, like liberal jurists do.

Karl Marx, who asserted that if people followed his views history would end in a man made paradise, a view that's much closer to what liberal jurists basically espouse, if not in the same exact fashion.