Friday, April 22, 2011

Are Roberts and Alito Political Hacks?

Conventional wisdom in liberal circles holds that, as bad as George Bush’s Supreme Court appointments may have been, Chief Justice Roberts and Associate Justice Alito are better than Justices Scalia and Thomas. Scott Lemieux says that’s wishful thinking because Roberts and Alito have now been around long enough to reveal that they’re substantially “worse”:
“[W]hile Scalia and Thomas are conservative ideologues, Roberts and Alito are Republican ideologues. While Bush v. Gore demonstrated that the former two are willing to be nakedly partisan, their commitment to broader legal principles will occasionally lead them to cast meaningful votes with the Court's more liberal faction. But Roberts and Alito have little interest in any overarching legal theory and avail themselves of this freedom to reach the outcome most desirable for conservative Republicans in every close case. Their apparent ‘moderation’ is a matter of tone and lack of candor rather than substance. Yesterday's case is another reminder that while Scalia applies more vitriol to his attacks on liberals, he's also more likely to cast votes that are consistent with liberal constitutional values. As amazing as it may seem, [VOPA v. Stewart ] is another illustration that Bush's appointees are actually worse than Scalia and Thomas.”
I suspect that my own standards for what counts as a correct Supreme Court decision and preferences in Supreme Court justices aren't very different from Lemieux’s. But that doesn’t keep me from being perplexed about what he means by saying that Roberts and Alito are “worse” Supreme Court justices than Scalia and Thomas. What normative standard is he applying? Here, as far as I can see, are the plausible possibilities.

“Worse” could mean something like: less likely to render the legal decisions that liberals prefer on political grounds. This is probably the best textual exegesis since the only evidence Lemieux adduces in support of his ranking of the conservative justices is that Roberts and Alito are “significantly more likely than Scalia and Thomas to side with business interests.” Yet it’s also an interpretation that makes his evaluation of conservative justices normatively trivial inasmuch as nobody besides liberals (and perhaps a few mean-spirited conservatives who think nothing is more important than depressing liberals) has any reason to apply the standard Lemieux's invoking.

It sure looks, however, like he aspires to say something with more normative heft than that. That suggests a more substantial reading of “worse” that means something like: less likely to discharge the distinctively legal duties incurred by anyone by virtue of sitting on the Supreme Court. You might get that idea from the quoted passage that Lemieux thinks that Scalia and Thomas are better judges than the Bush appointees because they embrace a theory of legal interpretation that occasionally constrains them from deciding cases according to their political preferences.

Yet that can’t be what Lemieux’s thinking either. He clearly believes that all the liberals on the Court are “better” justices than all the conservatives. Yet, with the exception of Justice Breyer, none of them have shown any more interest in any “overarching legal theory” than Roberts and Alito. Moreover, the scattered thoughts about how a judge properly goes about her business that Justices Sotomayor and Kagan offered at their confirmation hearings were distressingly similar materially (although notably less articulate) than the answers that Justices Roberts and Alito gave to similar questions when they were confirmed.  I'm a fan of Justice Breyer’s ruminations about how a judge should read the Constitution’s open-ended provisions (see his Active Liberty (2005)), but I can't see how they'd ever constrain a liberal judge from reaching a decision that answered to his political philosophy. If anything, Breyer's arguing that judges shouldn’t be ashamed about reading liberal values into the Constitution.

Finally, Lemieux’s sense of “worse” could mean something like:  less likely to render legitimate judicial decisions.” That would be saying something.  The possibility that Lemieux means to say it is raised by his bringing up Bush v. Gore as evidence that Justices Scalia and Thomas occasionally put “naked partisanship” above scrupulous judging. Lemieux might be suggesting, not only that the case was wrongly decided, but that Scalia and Thomas’s joining the majority decision amounted to such a dereliction of judicial duty that no conscientious citizen should regard either the majority decision or the first term of the Bush presidency as politically legitimate.

Lemieux certainly wouldn’t be the first liberal thinking along these lines, but the thought is incoherent all the same. As a matter of mere logic, a judicial decision’s legitimacy has nothing to do with its rightness or wrongness. To say that a decision is “legitimate” is just to say that we have good reason to acknowledge its authoritativeness because of its institutional pedigree even if we think that it’s scandalously wrong. We can’t do without some such notion of “judicial legitimacy” in a pluralistic society because we're bound to disagree about what counts as a right judicial decision.

So I conclude that, whatever Lemieux aspires to say, he has only succeeded in saying this: that liberals are more likely to be disappointed by Justices Roberts and Alito than they currently think. That’s not a criticism of Lemieux inasmuch as it's an interesting thesis, it may well be true and it's undoubtedly of interest to readers of The American Prospect in any case.   My point is that what Lemieux's saying about Roberts and Alito doesn't amount to much of a case against them either.  

1 comment:

Anonymous said...

I think it is odd that anyone would suggest that a Supreme Court justice could be a "political hack." I think history has shown that just because a justice is nominated by one president or another, it doesn't always mean that that justice will decide cases in a liberal or conservative way. It might hold true in most cases, but that might be more of a question of that justice's application of the law as well as his or her own personal conviction. To say that any Supreme Court justice is a hack suggests that their decisions are predetermined to be pro-liberal or pro-conservative regardless of personal convinction (not to mention the application of law).