I Guess It Depends on Your Reference Point:

Bruce Ackerman, writing in the L.A. Times today:

In retrospect, Souter and Thomas have turned out very different. Souter has developed into a moderate conservative in the tradition of John Marshall Harlan, the great dissenter to many of the activist decisions of the Warren court, but a firm believer in the right to privacy and due process of law.

Thomas, in contrast, has established himself as the most reactionary jurist of the modern era. He is the only member of the high court who claims that the New Deal expansion of federal regulatory power was a "wrong turn," that the Constitution permits a state such as Utah to establish Mormonism as its religion, and that American citizens may be detained indefinitely on the say-so of the president.

Um, yeah, David Souter--definitely a "moderate conservative."

For the record, he labels O'Connor a "conservative pragmatist" which, from what I can gather, is somewhere between "moderate conservative" and "reactionary".

Related Posts (on one page):

  1. Finding Judicial Philosophy in Nonobvious Places:
  2. I Guess It Depends on Your Reference Point:
SimonP (mail) (www):
Professor Zywicki-

Out of curiousity how would you describe Justice Souter, and what former Supreme Court justices would you describe in similar terms?
7.7.2005 6:55pm
Greedy Clerk (mail):
Justice Souter is definitely a moderate conservative in the mold of Justice Harlan. If you disagree, please explain how you think Harlan was not a moderate conservative (which he clearly was) or explain how you think Souter's jurisprudence differs in any material respect from Harlan's. THey are very similar.

You are correct on one thing: it does depend on your vantage point. In the Warren Court days, Ginsburg and Stevens would be moderates, and Breyer would probably be a conservative. The goalposts have been moving right for sometime. There are not Brennans or Marshalls anymore. . . .
7.7.2005 7:26pm
Joe Jackson:
This is ridiculous. Souter is a dyed-in-the-wool leftist, and only the most ardent partisans would even bother to claim otherwise. My apologies to Bruce Ackerman, but we are not all neo-socialists, er, "stakeholders."
7.7.2005 7:38pm
Silicon Valley Jim:
Hasn't Souter voted with Ginsburg about 85% of the time since both of them have been on the court? And isn't that the highest rate of agreement between any two justices on the court during that time? Does that mean that Ginsburg is a moderate conservative, as well? If that's the case, does "conservative" have any meaning whatsoever?
7.7.2005 7:40pm

If that's the case, does "conservative" have any meaning whatsoever?


It has meaning in distinguishing between the degrees of "conservatism" among the nine members of a fairly conservative court. Even if the remaining eight justices retired tomorrow and Bush appointed all 9 members of the court, 10 years from now we would still speak of the more conservative justices versus the more liberal justices, even though, objectively, they would all be quite conservative.
7.7.2005 7:55pm
Zywicki (mail):
Greedy Clerk:
I published an article a few years ago in the North Carolina Law Review that looks closely at the use of precedent and traditional by Souter and Harlan. The confusion arises because Souter seems to believe he is following in Harlan's footsteps, but that plainly is not the case.

Harlan was a Burkean conservative (which seems to be called "moderate conservative" these days) who looked to precedent as a source of tradition and fixed his jurisprudence within that framework.

Souter is clearly a liberal. He claims to be doing the same thing as Harlan, but (notwithstanding Ernest Young's protestations to the contrary) to my mind he is plainly not a Burkean constraining himself by precedent and tradition, but rather is using precedent to rationalize decisions reached by other means.
7.7.2005 8:22pm
CharleyCarp (mail):
Souter is a dyed-in-the-wool leftist . . .

Can we have a cite to his opinion where he advocates state ownership of the means of production? A national health service? A confiscatory tax system? Any policy with any indicia at all of either socialism or communism?

To take Guest's point a step further: there are undoubtedly people more conservative that the President. If this justifies calling George W. Bush a dyed-in-the-wool leftist, then the words have ceased to have meaning . . .
7.7.2005 8:23pm
While I think the comparison between Souter and Harlan is fair, I also think it's fair to note that one cannot label all nine Justices as "conservative" without robbing the term of meaning. Of course, since Justices don't exactly operate on a single left-right spectrum (does anyone?), one could argue about the appropriate term all day. For example, some believe that if a judge supports Roe v. Wade, that constitutes them as a liberal judge regardless of any other positions they might take.

What's puzzling, though, is the refusal of some people to admit that there is any ideological difference between Ginsburg and Brennan. The argument always seems to boil down to "Ginsburg worked for the ACLU!" without any actual analysis of the actual decisions of both Justices. Although, the other day, one proponent of this position admitted that Ginsburg doesn't enact the same sweeping liberal policies as members of the Warren Court did, but justified the equivalence between Ginsburg and Brennan anyway by claiming that the Warren Court went so far, there are simply no sweeping liberal policies left to enact. I have no response; but it does make me wonder if Brennan will someday be labeled a "moderate conservative" by someone seeking to make a point.
7.7.2005 8:25pm
"reactionary" is an abusive word. "reactionary" derives its emotional weight from the implication that the target is merely reflexive not thoughtful. This is patently unjust in the general case--some people might actually be reflexive voices of dissent but the aliterate campaign to redefine reactionary as a word with intellectual use for any movement that works to repeal rather than merely conservative obfuscates rather than enlightens.

"reactionary" is derived from a French revolutionary epithet used against supporters of a restoration. It is predicated on the arrogant assumption that the current state of affairs is progress.

Thought experiment: someone is a conservative. Some policy is decided against their preference, but they retain their convictions. Is it just to now label this person "reactionary"? No. Not in any way that respects "reaction" as the root of "reactionary".

"reactionary" is a tool rhetorical abuse. Almost any argument that classifies someone in this way deserves rebuke.
7.7.2005 8:47pm
Kory (www):
A similar reading in Time magazine this week. They have an article on the 8 justices left and label them as such:

Staunch conservative: Thomas, Scalia, Rehnquist
Moderate conservative: Kennedy
Moderate liberal: Ginsberg, Souter, Stevens, Breyer
Staunch liberal: None

I guess it just is how staunch liberals view the world. Everyone is to the right of them.
7.7.2005 10:55pm
Gene Vilensky (www):
I agree with Prof. Zywicki. I am not an expert on Con Law, but I have heard elsewhere of Harlan being considered a Burkean who respected precedent as a part of the Burkean respect for tradition that grounds our legal processes. While I probably agree with the Lawrence decision, it was anything but Burkean, overturning years of Supreme Court precedent.

Ackerman still has not explained how being the only justice on the Court who believes that some New Deal jurisprudence ought be reconsidered is a reactionary. Several months ago, he had a hit-piece in the London Review of Books calling Thomas and Scalia neo-cons. When I emailed him to explain the term, he claimed that by neo-con he meant "willing to overturn precedent." Umm... ok. So I guess that Jackson, Warren, and Brennan were all neo-cons.

As I said here before (and to Ackerman... though his response was "Go read We The People"), the Left's legal strategy since 1920 seems to be:

Step 1: Hijack the Courts (sometimes through ethically unsound means... can you say, "Court Packing Plan") and overturn years of precedent to get desired policy result.

Step 2: Once the Courts start changing back, start yelling "stare decisis! stare decisis!" to preserve the precedents your side created.

Saying that Stare Decisis is a vital part of our legal sytem that ought be respected would mean that Step 1 is wrong as a matter of legal philosophy. Saying that precedent must go in some cases means that there's nothing wrong with Thomas. Ackerman, Neas, Aron, etc. want to have their cake and eat it too.
7.8.2005 2:16am
Strophyx (mail):
For those who like to worship at the altar of Stare Decisis, I've got a nice precedent to uhhhhm "feast" on: US v Cruickshank 92 US 542 (1876). Even though it was decided 20 years prior to that other juicy morsel, Plessy v. Ferguson, 163 US 537 (1896), it's still there and even gets cited regularly as precedent.
7.8.2005 2:44am
Hans Bader (mail):
Souter is much more liberal than Justice Harlan, and it is silly to say that he is anything other than a staunch liberal. Justice Harlan voted to uphold the death penalty. Souter has voted to cut back on it at almost every opportunity, voting to strike it down for 16 and 17 year-old murderers, mildly retarded killers, and all murderers sentenced by judges rather than juries. Harlan followed even precedents he disliked. Souter doesn't respect longstanding civil rights or voting rights precedents that limit federal power over private employers or local governments. Harlan was unfailingly gracious to litigants. While Souter is usually polite, he sometimes interrupts lawyers he dislikes with questions he doesn't even let them answer properly. And Souter lets core political speech and association rights, as well as local control of local elections, be sacrificed to political exigencies, as in the campaign finance cases.
7.8.2005 2:59am
CrazyTrain (mail):
Kory, I am afraid your criticism of Time is entirely without merit. Ask any honest legal thinker and they would agree with that. Brennan, Marshall, Douglas -- those were "stauch liberals." The ones sitting on the Court now -- routinely affirming death sentences, going along with narrowing of criminal rights, etc. are not "staunch liberals." On criminal issues, many of the Warren Court precedents survive to a degree but have been narrowed considerably (and have nto been expanded) -- the so-called "liberals" on the Court today went along with all of this for the most part.

Moreover, look at Breyer, could you imagine Brennan voting as Breyer did in the Sentencing Guidelines cases? on Mandatory Minimums??? Recall that Breyer was the deciding fifth vote upholding mandatory minimums. That ain't a "staunch liberal" no matter how hard you try to make it so.

As for one commenters' apparent puzzlement as to why Ginsburg is always trotted out as the bogeyman of the "liberal Court" (when she clearly is not even the Court's most liberal member)--- it's all in the name. Pat Buchanan used to love to refer to the "Ginsburg Court", some people just really don't trust them jooos. . . . and most of those people vote republican these days.
7.8.2005 3:04am
Kory (www):
That is a silly argument crazytrain. Your theory argues that because there was at one point in history 'more liberal' justices, the current ones can't be considered 'staunch'.

Well, then you could make the same case for the conservatives. It is pretty clear to most observers of the court that Rehnquist is 'less' conservative (depending how you define that word) than Thomas and Scalia, yet he is still labeled a 'staunch conservative'. Also, many of the conservative justices during the mid-twentieth century (Van Devanter, McReynolds, Sutherland, Butler) that were holding all the New Deal programs unconstitutional could easily be considered more 'staunchly conservative' than Thomas or Scalia.

Time magazine takes the typical left position today. Apparently anyone who isn't 100% liberal is a 'moderate', while anyone over 75% conservative is 'staunch' or 'radical'.
7.8.2005 10:06am
Jay (mail):
Isn't this entire discussion simply incoherent? Todd's point that Souter is not a burkean and that Ackerman over-rhetoricized by calling Thomas reactionary is quite fair, but so is distinguishing between Breyer, Ginsburg and Brennan. For crying out loud folks, we're supposed to be lawyers--if you can't spot the clear distinctions . . . .
7.8.2005 11:56am
Just so, Jay.
7.8.2005 12:31pm
Greedy Clerk (mail):
Kory, I don't buy your argument at all. First, it is impossible to compare Thomas or Scalia to McReynolds,et al. -- different times completely and I am not sure that McReynolds and the guys who were invalidating all those laws on due process grounds could really be considered "conservatives" by today's standards -- I just don't know what they are really, it was a different time.

I think the relevant comparison is from today's judiciary. In today's judiciary, Thomas (and to some degree Scalia and Rehnquist) are about is about as conservative as can be. Nothing wrong with that -- this is the reason why these Justices are very popular with conservatives. Sure, there may be some other judges who are "more" conservative on some issues, but on the whole, I'd say that these Justices are "staunch conservatives" when measured against others on today's judiciary. Now, compare Ginsburg, Breyer, and even Stevens to today's judiciary. And there are clearly judges that are much "more" liberal than they. Reinhardt, Barkett, and Paez come to mind. They are "staunch liberals" --- Reinhardt has never voted to affirm a death penalty in his whole career -- and he is supposedly bound by Supreme COurt jurisprudence. Simply put, on criminal issues especially, today's "liberal" Supreme Court justices just are not that liberal when compared to the "staunch liberals" of today's federal judiciary. I don't see how one could argue otherwise, and frankly, such an argument is intellectually dishonest. Recall that Ginsburg and Breyer were both in the middle of their courts of appeals -- and neither Circuit (DC and 1st respectively) had a reputation for being that liberal.

Moreover, what is biased about Time saying that Thomas, Scalia and Rehnquist are "staunch conservatives" -- they are, and that is why conservatives are such big fans of them. Ginsburg and Breyer (and even Stevens) just are not as "liberal" as Thomas is "conservative." THere's nothing wrong with pointing that out, and it does not evidence a bias.
7.8.2005 2:21pm
Tumbling Dice (mail):

some people just really don't trust them jooos. . . . and most of those people vote republican these days.

Crazytrain, you reveal yourself here to be a few bricks shy of a load. I realize a lazy mind like yours is susceptible to buying into such stereotypes, though.
7.11.2005 11:05am
Eric Rasmusen (mail) (www):
I am amazed that people think this court is less liberal than the Warren Court. The Warren Court did not rule that states could not enact bans on abortion or homosexuality. This court holds both of those views. Even on Miranda rights, this court has gone to the left-- the Warren Court did not rule that they were constitutionally required, onloy statutorily, if I remember rightly.

Indeed, is there a single Warren Court holding that has been overruled?

I would argue that no justice except Thomas is conservative, viewed over a 100-year time horizon. Wouldn't even Rehnquist and Scalia's votes look liberal in the 1920's court?
7.11.2005 5:42pm