I don’t dispute the claim that conservative judges bring together Democrats in a way that will end internecine fighting, but I do question to what extent. McCain’s speech was relatively tame in comparison to what Bush and other prominent Republicans have been saying on the topic, likely due to his desire to at once court the right – the comments about the 9th circuit come to mind – while at the same time keeping moderates on board. On this latter point, notice how he does not rely on value arguments, such as abortion or gun rights, but rather couches his logic on the checks and balance system almost exclusively. This approach likely won’t galvanize liberals in the same way that saying that abortion is wrong and judges should be against it, if for no other reason than the ideas of judicial activism, strict interpretation, and the appropriate balance of powers set out by the Constitution are not always easy to understand and so individuals might not recognize the implications of what McCain (or Democrats for that matter) are saying.
I do dispute Lang’s overall argument, however (that McCain’s speech indicates that the judges he suggests he’s looking for would be activist, not traditionally conservative) because the surveys upon which it relies appear deeply flawed in their methodology and so cannot be trusted to give the conclusion he asserts.
First, and admittedly somewhat of a tangential point, take his initial use of data: the
Liberal Neutral Conservative
The Court is currently between the Neutral and Conservative markers (more Conservative than not): 5 conservative Justices (Kennedy being the swing) and 4 liberal ones. 43% of the population believes that this conservative tilt is about right. 21% believe that this conservative tilt is still too liberal. Thus, 64% of the sample (well outside any reasonable statistical margin of error) believes that the Court is either good or not conservative enough. That clearly trumps the 32% who argue that the Court is too conservative. Thus, Lang’s claim that more Americans think the court is too conservative versus too liberal might technically be correct, but the more accurate and telling statement is that more Americans think the Court is either in a good place (as a conservative Court) or too liberal than think it’s too conservative. In this way, McCain’s claim that he’ll continue to pick conservative justices to serve on the Court lines directly up with a majority of Americans (by a significant margin).
Now, I happen to agree with Lang’s comments concerning Kelo and it is here where McCain’s independent (and sometimes Libertarian streak) comes into conflict. It is true that he (and most Americans) disagreed with the outcome. However, at the same time, if he was advocating strict interpretation (or non-activist judges) he would have to abide by the Kelo ruling. I see this more as an episode of political pandering that one of promoting a particular judicial philosophy: the Paleo-Republicans (small government, many Libertarians etc.) were appalled at the decision, regardless of the concomitant judicial philosophy involved. To garner their support, it would be near suicide to argue that Kelo was an appropriately argued decision and should not be overturned by the courts (as opposed to amending legislation to deal with it).
However, extrapolating McCain’s philosophy on Kelo out to a larger sample (in this case that he would actually support judicial activism because conservative judges have proven more activist, not less than liberal ones) is a non-sequitur. The reason for this jump in logic is that, looking at the studies that assert the link, each one has clear flaws that preclude one from determining that conservative judges are more ‘active’ than liberal judges.
The first two studies cited, Gewirtz/Golder and Miles/Sunstein, suffer from the same methodological flaw: they code judicial activism in such a way that ignores much of what the debate is about. Both surveys define activism in a similar fashion: “as how often they have voted to strike down a law passed by Congress and signed by the president,” (quoted from Lang’s post). The problem here is twofold. First, as Gewirtz and Golder admit, just because the Justices strike down (or vote against) a piece of legislation does not mean it is judicial activism – the legislation itself could be unconstitutional. Their description of what constitutes a pattern of such strikes in a way that suggests activism is also problematic. They literally say that a marked pattern of invalidating laws suggests that they are more active. However, there is no control in the experiment; we do not know whether the Congress at the time was particularly adamant in passing legislation that was confrontational with strict interpretive positions of the Constitution. If that’s the case, it’s easily possible that the reason there are such patterns is that one of the other branches was creating a situation favorable for those patterns to emerge, not judicial activism.
The second, and greater problem, with both surveys’ definition is that is misses the other half of the coin. Judicial activism is not merely about striking down legislation that Justices disagree with, though that element does exist. It is also about upholding legislation that Congress (or state legislatures) passes that is of dubious constitutionality. These actually seem to make up the most well-known cases of ‘judicial activism’. For example, Griswold v. CT, Grutter v. Bollinger, and many of the Establishment Clause cases, judicial activism was charged against liberal Justices because they did not strike something down, not because they did. Yet, both of these surveys miss that entire aspect of judicial activism and so, even beyond the potential collinearity between constitutionality and patterns of strikes, it does not follow that conservative Justices are more ‘activist’ in the way the term is actually meant and used.
Finally, the Posner survey tells us almost nothing about whether the Justices are activist or not. Indeed, it seems to suggest that they are motivated by political dispositions (rational according to Posner). However, the survey’s findings do not really tell us that much; if justices are voting on cases in a conservative manner is that because they are politically biased and so vote on the outcome they want? Or is it because their particular judicial interpretation (e.g. Strict Constitutionalists) lends itself to decisions that are usually more conservative than not? If it is the latter case, then I do not see where the problem arises. If it is the former, then I do think Lang has a point that we should be at least somewhat concerned about the dispositions all Justices are bringing to the bench.