Conservative Court?

[Sean Wilson]

Bobby: 
 
There are two concepts that might be helpful here: Pathology and Grammar. You seem to be interested in philosophy. For now, throw the philosophy away. I love philosophy, but there is no point in using it to construct an empirical measure of ideological direction. 
 
Let's take Grammar first. I use this word in a Wittgensteinian sense (old Ludwig is my hero). When people use the terms "liberal" and "conservative," they either mean something general like "permissive" and "less permissive" -- she's a conservative dresser -- or they mean what the political scientists tend to mean: the aggregation of belief components in American political culture. The aggregating of beliefs in a political system, as Converse notes, is only "quasi logical" -- it is not really the product of philosophical method. It is best to think of these belief components fitting together in a PATHOLOGICAL way. When you look at the beliefs, you will see pieces of logic and philosophy, but once the clientele that the ideology serves is injured by the "logic," the reasoning gets reformed, thrown away, etc. That is because what these belief systems do is rationalize winners and losers in the political system. That is the core definition of what ideology is all about.   
 
Hence, liberals want strong and vigorous government in the areas of national health care, the welfare state, the regulatory state; but when the issue is the kind of sex you have in the bedroom, the criminal police state, finding terrorists at home -- all of a sudden, the vocbabulary of big government is exchanged for the grammar of rights (limited and weak government). Conservatives do the same thing. Hence, you cannot say that liberalism or conservatism constructs itself around a genuine philosophic difference about how powerful the government should be; rather, it constructs itself around who benefits or loses from each of these policies, and then offers a rhetoric for why this is so.
       
Rush Limbaugh doesn't understand this -- he thinks these ideologies represent some sort of coherent vision of truth or something, and what you do in life is chose the "correct" one. This is clearly not the case. Ideology is more linked with political cultural pathology than it is philosophy for its own sake.
 
Now, are there elements of rational philosophy inherent in the rhetoric? Of course. But rather than specify it out in the way you would like (a philosophic exposition), the attitudinal model simply takes it upon itself to code the votes of justices according to whether the votes fit a stereotypical typology of what each belief system entails. If the culture is meaningfully aligned around the controversy -- affirmative action, flag burning -- it is easy to mark the vote. If the culture is not meaningfully aligned around the issue, it is harder, and a back up criteria is used (akin to judicial activism v. restraint -- I don't have the time right now to spell that out). Now, in truth, the creation is far from perfect; but also in truth, it is pretty damn good I think. When people talk about Justice Kennedy, most people think of him as being less conservative than Scalia and more so than Breyer. The actual numbers seem to fit what they have in mind when they use those words.
 
So the point is this: you seem to want to know to what extent ABSTRACT IDEAS (libertarianism, egalitarianism) affect judicial choice. The variable coding in the supreme court data base really isn't concerned with that. Other research that uses scaling techniques tried to get at that question, but honestly I don't find it helpful for reasons that I do not want to get into.
 
The more interesting question is to what extent judicial choice is a function of the larger cultural pathology that forms in the political system and that judges have knowing or unknowingly signed on to. When Rehnquist voted, as with Marshall, favoritism for "teams" as those teams manifest themselves in American political culture was indeed formidable at an aggregate level. For Kennedy and Breyer, this effect appears much lower. 
 
Historically, favoritism for ideology explains about 30% of what the Court does in civil liberties cases, but this effect is actually falling now. 
   

RJLipkin at aol.com wrote:
        A few questions:
 
        (1) How do we identify conserative or liberal social policy without first analyzing the concepts themselves. 
 
        (2) If the answer is look to the wider culture, how do we know how conservativism or liberalism is constructed in the wider culture without first analyzing the concepts themselves?
 
        (3) Do we simply identify certain issues in the wider culture as those "considered" conservative or liberal?  Conservatives believe X, Y, & Z while liberals believes A, B, & C. If so, our conclusions might vary widely from what upon reflection we might consider the most persuasive cocneptions understanding of these terms.
 
        (4) Since there are different strains of conservativism and liberalism what are we studying when we identify certain issues as one or the other tout court? 
 
        (5) Are the above questions simply irrelevant because all political science wants is some procedure to identify what is ordinarily called "conservative" or "liberal" to assess judicial trends--how we can predict judicial decisions--whether there's an interesting relationship between theses empirical conclusions and a conceptual or philosophical conception of these terms at all?
 
Bobby
 
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

		
---------------------------------
 Yahoo! FareChase - Search multiple travel sites in one click.  
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20051102/f9eafbe2/attachment.html