Monday, July 13, 2020

There's a lot of blawg and op ed commentary right now about why conservative justices aren't reliable, the way liberal ones are. . .

in terms of their sticking to the ideological side of their supposed camp.

We've discussed this before, so this is an instance where we're ahead of the debate curve.  The answer to it, at any rate, is fairly simple.

There aren't any "conservative" justices in terms of philosophy.

Okay, that's an exaggeration, but there are very few reliably conservative justices in terms of philosophy.  Justice Thomas may be about it.

The reason that this surprises people is that political conservatism and philosophical conservative are confused all the time and, like any set of philosophies, even political conservatism is really more than one stream of thought.

At any rate, judicial conservatism would require a fundamental, even metaphysical, concept of the law.  This was in fact at one time common in the law and on the courts.  Even as late as the 1970s some justices would cite metaphysical concepts in a decisions.

That doesn't happen anymore.

Starting with perhaps the failed confirmation hearing for Robert Bork, what we started to get instead was "strict constructionist" and "textualist".  These justices may be politically conservative in general and even somewhat judicially conservative, but at the the end of the day they are not concerned with metaphysics and the law.  There's no "is there a Law greater than our law" type of analysis as you can find, for example, in The Antelope.  These topics aren't debated.

In contrast, liberal justices tend to seamlessly blend their metaphysical concepts with their opinions.  It's even fairly open most of the time.

Hence we have two interesting examples, on totally different topics, over the past decade.  This past term the Supreme Court ruled, 5 to 4, in McGirt v. Oklahoma that about half of Oklahoma lies in a reservation and therefore the state of Oklahoma cannot prosecute crimes against Indians in that part of Oklahoma.  How this plays out is not yet known but those who are inclined to wish not to be too concerned simply assume that the holding is limited.  In my view, it isn't.  It's fully expansive and it'll take a couple of decades and at least one more visit to the Supreme Court to work this out.

Now, it's easy to see how the liberal justices would vote in this fashion, but Gorsuch was the swing vote and author of the opinion.  How could he?  Easily enough, Gorsuch, as his prior decisions have already demonstrated, ia s pure textualist.  He reads and applies the text, and doesn't worry about much else.

Now, in fairness, there isn't a set of greater metaphysical questions immediately presented by this case. . . although there are some.  One would be whether a separate set of laws pertaining to Indian residents of a state alone is really just.  I.e., is this a type of legal apartheid in the United States, and if it is, should it be maintained?  Is it even moral to do so?  In this context, few realize that the Bill of Rights doesn't apply to Indians on reservations.  Shouldn't it?

In contrast we have Obergefell from a couple of years ago.  In that case Anthony Kennedy, the swing vote at the time, authored the opinion in what was clearly a results oriented opinion.  It's impossible to read the case without coming to the conclusion that the liberal opinion was designed to create a state of law which was what its authors thought should be the law, rather than basing the opinion on any actual law at all.

And this breaks down the two basic judicial philosophies on the Court.  One holds that we read and apply what is there, informed by what we know about the original authors.  It's conservative, but not in a metaphysical, what about Natural Law, sense.  The other holds that we look at the law and apply it the way that progressive minds would have the law read.  It's into metaphysics, but only shallowly.

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