« No Disclosure for You | Main | It Takes Two » Public Opinion on the Court09 May 2008 03:23 pm Via Lang at OpenLeft, here's a roundup of public opinion on the Supreme Court which shows that a plurality of people like the Court fine as is, but the number of people who think it's too conservative is substantially larger than the number of people who think it's too liberal. Conservatives seem convinced that vacuous posturing against "judicial activism" is a winning issue, but I'm not sure there's much data to back that up. Comments (22)
criminalize abortion and birth control and homosexuality without the Court butting in. Plus we could torture people, you know. As long as we're not punishing them specifically for something. That way it's not cruel and unusual punishment. 
Unlike, say, liberals thinking that a winning issue involves vacuous posturing that McCain's judges will take your vagina away.
Blah is correct, but there's something else at work too. If you say something often enough and say it loudly, a lot of people will start to assume that you've got a point. The right-wing anti-little-guy-lawsuit crowd get a lot of momentum out of decrying the liberal activists courts just as they get momentum from decrying the "liberal" media. Don't expect them to shut up about either any time soon. Why should they? Their strategy is succeeding. People's access to the court system is more restricted than ever. Someone should look into how the workers compensation system has been effectively shut down in Florida as a horrid example of where we're headed. In a nutshell, right-wing activists have pushed through a series of laws that dramatically restrict the fees that plaintiffs lawyers (those representing workers) are allowed to collect. No similar restriction was placed on defense attorneys (who represent the insurance companies). It is essentially impossible to make a living as a plaintiffs attorney in workers comp anymore. The result is that most plaintiffs attorneys have left the business. If you're a worker injured on the job, you have to take what your employer's insurance company decides to give you. There is no longer any other recourse for you in the court system. It is amazing that this travesty has passed completely under the radar.
From McCain's speech: Well, a justice of the court, as Senator Obama explained it -- and I quote -- should share "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." Dear God. I voted for Obama in the primary, and I was planning on voting for him in November. But now that he's suggested judges have empathy . . . well, I'm off that bandwagon.
Arguing against judicial activism sounds good, on the surface at least. Do liberals have a judicial philosophy that they can summarize in a catchy sound-bite? Or, at least, a sound-bite describing their critique of conservative judicial philosophy?
Can the average member of the public even name two Supreme Court Justices (not counting Judge Judy or Judge Reinhold)?
Without information about the intensity of opinions, this post is silly. If 90% of the voters dislike something a little, but the 10% like it a lot, supporting it can still be a winning position.
Perhaps a winning sound-bite after the last 6 years is that liberals believe that the constitution provides checks and balances limiting executive power.
You know, what's sad is, "Snapper" probably thinks this: liberals thinking that a winning issue involves vacuous posturing that McCain's judges will take your vagina away ...is some kind of awesome rhetorical zinger when in fact it's just unbelievably pathetic.
The poll asks the wrong question - whether the court should produce more liberal or more conservative policy outcomes is a secondary concern to whether the court is accurately interpretting the law for most people, who will accept non-prefered policy outcomes from the courts if they think the interpretation of the law is correct. This is why using the term "judicial activism" is effective for conservatives despite the fact that in practice the term lacks a consistent meaning since it's contingent on how you interpret the Constitution; it's usage is to imply that they'll appoint judges who are more interested in accurate interpretation than what policy outcomes the interpretation produces. Since most liberal politicians don't even bother to pretend a coherent approach to interpretation of the law (regardless of whether the "strict constructionist" approach most conservatives claim to suscribe to is more coherent, they put a lot of effort into trying to create the impression that it is) conservatives tend to do better on the issue than that polling data would suggest.
"My name is Judge!" Thank you for making me remember Judge Reinhold.
most liberal politicians don't even bother to pretend [to] a coherent approach to interpretation of the law Just so we can establish a baseline, please name one Supreme Court justice (you can go back as far as you want, historically) whom you feel embodied "coherency" in his approach.
Ryan, That's not pathetic, this is: If vaginas are outlawed by McCain's judges, only outlaws will have vaginas.
Since Bush v. Gore, the posturing against judicial activism by the right rings sort of hollow. Plus, this allegedly conservative court has overturned more federal and state laws in the last 10 years than any Supreme Court in history. The right has a strange definition of judicial restraint.
James Gary, None of them particularly "embody" it to me as political nature of the appointment process pretty much assures, but some are more philosophically consistent than others. For a simple apples to apples comparison, Thomas has a more coherent approach to interpretation of the commerce clause than Scalia as demonstrated in the difference in how they ruled in Lopez compared with Raich, and I'd say Thomas is more consistent overall. Assessing the consistency of a particular justice is also difficult since they can change their approach over time. Stevens has been consistent on the commerce clause, but has changed his positions on the first amendment over time, but it's not clear exactly how much is due to legitmate philosophical drift. This, of course, is beside my point, which is about the rhetoric used when politicians oppose and support nominees. Liberal politicians tend to emphasize the outcomes of specific rulings without trying to draw a common philosophical line between them, whereas conservative politicians tend to deemphasize specific rulings in favor of general claims of being opposed to "judicial activism" or for "strict constructionism". My argument is that the conservatives have chosen the better rhetorical approach since it aligns more closely with what people think of the courts as doing.
MattXIV is correct that the right has the better rhetorical trick on this issue, but that is the case with almost every issue. The reason for this is that Republicans and right-leaning commentators are generally shameless liars and liberals have a serious problem with intellectual honesty. What liberals would do, if they wanted to change public opinion on this issue, would be to admit that, yes, judicial activism is a major problem and is always wrong. And then they should go around labeling every ruling they don't like as "judicial activism". That is basically what the conservatives do, so why not? But liberals will never do anything like this. At best you'll have the occasional snarky blog post or Krugman column pointing out the hypocrisy of conservatives on this issue. Scalia voted today to reverse a 200 year-old precedent on states rights and forced a sweet old lady in a wheelchair to pay $200,000 to a drug company. Good thing he's not a judicial activist. Oh, snap! The same process happens in political campaigns. Conservatives all line up in lockstep, declaring John Kerry a dangerous flipflopper who fakes his war wounds. Liberals wound NEVER be that organized and that phony. Never.
Jim W, you wrote "Do liberals have a judicial philosophy that they can summarize in a catchy sound-bite? Or, at least, a sound-bite describing their critique of conservative judicial philosophy?" We do. It's called a "living constitution," where social progress is taken into account when interpreting the Constitution. Justice Stephen Breyer wrote a book on this philosophy entitled "Active Liberty." Additionally, Justice Kirby, of the Australian High Court, has also written a book on a living constitution.
"Conservatives seem convinced that vacuous posturing against 'judicial activism' is a winning issue, but I'm not sure there's much data to back that up." That may be true, Matt, but conservatives don't *need* to establish a causal relationship between the two things (posturing against "judicial activism" - and winning) in order to achieve their objectives. Moving from the general to the specific, conservatives want (1) political power (which includes the ability to use it; this is why they like winning elections, because it enables them to claim mandates and scare Democrats, but they don't need to win elections to do either), (2) the ability to put conservative judges on the courts, (3) the ability to put conservatives on the courts without sacrificing political power, and (4) the ability to scare Democrats into letting them (A) put conservatives on the courts and (B) not exact a political price. So long as Democrats don't find a way to connect conservative judicial nominations to any kind of electoral penalties for any conservatives (or enablers thereof, like capitulationist Democrats), Republicans really don't *need* to prove a connection between "running on judicial activism" and winning elections. As long as it's not proven to be a *losing* issue, conservatives will keep doing it -- and even then, they might well decide to do it anyway if they thought it was a worthy price to pay. The difference this highlights between liberals and conservatives is that *one* movement has learned how to ignore people it thinks are waging concern-troll political arguments (no offense, Matt, but your advice, or mine, on how conservatives should use judicial nominations as an issue to win elections, is going to get taken quite lightly by anyone to the right of Ben Nelson) -- and they're quite familiar with the concept/danger, since it's one of *their* most potent tools. On the other hand, plenty of Democrats are willing to assume that they'd better vote for anyone Bush nominates, for fear he'll call them liberals, and... um... call them liberals again.
I think it's impossible, or virtually so, to educate the general public on the Constitution during a political campaign. Add to that the fact that the majority don't want to be told that the courts should restrict their God-given right to tyrannize various minorities by use of the power of the state. Consequently, those who wish to stick up for said minorities (read: Democrats) have to remain mum and hope the right people will get the message and the wrong people won't. Usually this doesn't work. Maybe it will this time.
The definition of an activist judge is a judge who makes a decision one does not agree with.
There really isn't mystery to the use of "judicial activism," and as Breyer's non-accidental choice of book title shows, it's not some right wing Orwellian tactic. It does not mean, pace the intellectually dishonest left's claims, "striking down laws." It is a shorthand for "living constitutionalism." Everyone who has written words here today hopes they communicated something by them. If 100 years from now, people interpreted those words to mean something wholly different, we'd think something queer had gone on, something illegitimate, something not true to the author. That's what "active liberty" jurisprudence, the judicial activism which reaches its apogee in the Warren era, strives for. It says--we can import "social progress," as defined by a majority of the 9 of us lawyers, into the Constitution. Well, one problem with that is that judges have no particular training to identify progress. Another problem is it leaves you with little to complain about when you lose a vote. So if the Constitution "lived" to enshrine liberal progress, well it's not dead yet--and now "progress" is a two way street--election of Republican presidents means the constitution transmogrifies yet again! Liberals want their favored precedents to be treated as part of a dead constitution, and the things they have yet to mangle about the real constitution treated as "living." They need "progress" to be a one way ratchet--but that would require, in their politicized version of the Court, winning lots more elections than you have so far.
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Heads in the Sand
I don't think conservatives actually believe that posturing against judicial activism will win swing voters. It's more like classic red meat for the base, which they do not believe will harm them with swing voters. It's a way of energizing conservatives and convincing them to campaign and vote for McCain so that at long last they can criminalize abortion and birth control and homosexuality without the Court butting in.
Posted by blah | May 9, 2008 3:34 PM