Balkinization: Why the Supreme Court Makes No Sense

Why the Supreme Court Makes No Sense

Charles Fried's op-ed in the New York Times today argues that the decisions of the Burger and Rehnquist courts used to make sense because they were developing a coherent set of doctrines that reflected classical liberalism or classical individualism, but the Court has lately gone off the deep end with its decisions on affirmative action (Grutter) and campaign finance (McConnell).

There are plenty of reasons that Charles might offer to criticize these two recent decisions, but one of them is not that they evidence a departure from a relatively coherent support for classical liberal principles since the mid-1970s. The Supreme Court is not a single mind, but a group of minds, whose personnel is regularly shifting. Liberals are replaced by conservatives, and one kind of liberal or conservative is replaced by another kind. Supreme Court decisions are compromises among the Justices, and tend to reflect, over time, not a consistent political philosophy but rather the changing views of national majorities and national political elites (and where the two conflict, those of national political elites). As a result, Supreme Court decisionmaking tends to go all over the place, hemmed in (albeit sometimes imperfectly) by the Justices' professional roles and existing precedent.

What decisions like Casey v. Planned Parenthood, United States v. Lopez, and Hibbs v. Department of Social Services have in common is not they are are all classical liberal decisions. What they have in common is that Justice O'Connor joined in them or wrote them. So perhaps Charles is really saying that he wishes that O'Connor was more of a classical liberal, and that she has disappointed him in Grutter (the affirmative action case) and McConnell (the campaign finance case). Fair enough. But one shouldn't expect a swing Justice like O'Connor to match a particular coherent political ideology. That's simply not what such Justices do. And don't expect a Court whose decisions depend on what swing Justices do to produce a coherent political ideology. That's not what multimember bodies do, either.

Posted 9:04 AM by JB [link]

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What they have in common is that Justice O'Connor joined in them or wrote them. So perhaps Charles is really saying that he wishes that O'Connor was more of a classical liberal.

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