Conservative Court?

[Mark Graber]

I take it the Maltz/Wilson debate highlights a difference between a
certain kind of political science research tradition and a more legal
tradition (of which some political scientists, myself included,
identify).  I think Professor Maltz would agree that in some sense the
Rehnquist Court is more conservative than a court composed of nine law
professors drawn at random or probably even nine lawyers drawn at
random.  He almost certainly would agree that Rehnquist is more
conservative than, say, Ginsburg.  But, when political science research
is being correctly specified, all it can say is whether a justice is
more conservative than another justice.  For the most part, for example,
proponents of the attitudinal model have not produced any evidence that
Rehnquist votes the way he does because he is a conservative.  What they
have produced is lots of evidence that Rehnquist votes more
conservatively than Ginsburg because Rehnquist is more conservative than
Ginsburg.
     But Maltz is asking the substantive question, not the comparative
question.  Granted this court is more conservative than it could have
been when compared to other judicial appointees, how conservative is it,
for example, with respect to conservatism as defined by the National
Review.  And, the probable answer is, "not very."  The best point here
may be Tushnet.  The court reflects a certain country-club conservatism,
but is neither yet conservative (really libertarian) in the image of
Cato or socially conservative.

Mark A. Graber