Conservative Court?

Wed Nov 2 14:52:47 PST 2005

Yes but the party platform is there to capture a marketplace. The same platform has won 7 of the last 10 presidential elections. It might be argued that this platform more centrist and the other platform is out of touch. Why else is it winning (and if it doesn't matter for party victory, why is it relevant at all?). 

The question I thought that you wanted to answer is whether the Court is conservative in its voting output relative to other justices or over time. To translate platforms into ideology, one is ultimately going to need an ideological criteria of some sort. I bet you those platforms are the product of strategy. They stick language in there to appease factions. For example, I bet the log cabin republicans had some effect upon it. The problem with platforms is that parties have ideological wings.

Furthermore, it is a contradiction for you to assert that courts are or are not "conservative" and then oppose the idea of researchers using a criteria to mark votes based upon that language  concept. I mean, you are using the word. How can you use the word and then say that you can only look at platforms. If we can talk about it, why can't we measure it directly?       

Don Crowley <crowley at uidaho.edu> wrote:
No Scott actually I think you just completely missed Cornell's point. His
argument is that the best way to measure the direction of the Court is to
compare it to the political platforms of the parties. On this measure he
argues that the Court has clearly moved in the policy directions advocated
by the GOP.

Don

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scott Gerber
Sent: Wednesday, November 02, 2005 2:00 PM
To: Cornell Clayton
Cc: conlawprof at lists.ucla.edu
Subject: Re: Conservative Court?

My brief reaction to Cornell Clayton's thoughtful post is that the 
discussion on the list, including Cornell's post, seems to think that 
the Court is conservative because it isn't far Left. In other words, 
just because the Court hasn't given the Left everything it wants on, 
for example, affirmative action, doesn't mean it's conservative. 
Obviously, I've simply turned Cornell's argument on its head.

Scott

Cornell Clayton wrote:

>I have to get back to work too, but two comments on this thread:
>
>1) With all due respect to Earl Maltz and Scott Gerber, I think it is 
>disingenuous to argue that, since the Court has been as conservative 
>as some want, that it has not moved considerably toward the 
>"political right" or toward the "conservative" direction in American 
>politics since 1980. To point to cases where the Court hasn't taken 
>the most conservative position and then argue that it is not 
>conservative, is to try to find the rule in the breach. For example, 
>to argue that the Court has upheld affirmative action in Grutter, one 
>has to ignore that affirmative action has been significantly limited 
>in cases such as Aderand and Shaw v. Reno; to argue that the Court 
>has been "hostile" to the death penalty in cases such as Roper v. 
>Simmons, one has to ignore that the Court reversed itself to uphold 
>the death penalty in Gregg v. Georgia and McCleskey v. Kemp and has 
>consistently limited death row appeals in cases such as Barefoot v. 
>Estelle and Payne v. Tenn.; to argue that the didn't allow Congress 
>to overturn the Miranda rule in Dickerson, one has to forget that 
>Mirranda has been significantly narrowed in cases such as Fulminante 
>and Brecht (ditto with respect to the exclusionary rule of Mapp being 
>significantly narrowed in cases such as United States v. Leon and 
>Massachusetts v. Sheppard); to argue that the Court has protected the 
>abortion right, one has to ignore that it has been made signficantly 
>more vulnerable to state regulation in decisions such as Casey and is 
>now on the verge of being overturned; to argue that it hasn't allowed 
>religious groups free reign in the public square in cases such as 
>Weisman or Allegheny, one has to ignore that the Court has generally 
>protected and expanded the space for religious exercise in public 
>institutions in cases such as Marsh, Lambs Chapel, Mergens, Central 
>Schools, Zelman, etc., etc.. Finally, to make this argument one has 
>to completely ignore (or entirely distort) outright wins for the 
>political right in cases such as Bush v. Gore, or those under the 
>Court's new federalism jurisprudence in cases such as Lopez, Printz, 
>Kimel, Morrison, Seminole Tribe, Alden v. Maine, Garrett, etc. (and 
>note that in nearly all these cases the Court selectively applies its 
>federalism principles to strike down liberal policies while refusing 
>to strike down conservative policies in cases such as Raich). I 
>could go on but the point should be clear -- simply because the Court 
>has not been as "conservative" as some wish, does not mean it has not 
>moved significantly in the "conservative" direction over the past 2-3 
>decades. (One possible exception to this is sexual preference and 
>the Court's decision in Lawrence. Bet even here I would argue that 
>there is no "conservative" consensus on this issue -- if you polled 
>Republicans, for example, my guess is that most would oppose the 
>criminalization of private consensual sodomy as opposed to say the 
>issue of whether same sex marriages should be allowed.)
>
>2) But the discussion on this thread brings up my original 
>argument. It is problematic to discuss the political directionality 
>of the Court using any kind of self-referential measure -- whether 
>this is quantitative attitudinal methods and measures (that compare 
>justices against each other) or more traditional doctrinal analyses 
>and measures (which compare the Court today against the Court 
>yesterday). Instead, if one wishes to examine the political 
>direction or the political role of the Court, then one has to 
>reference the broader American political system and pay attention to 
>the forces and groups that make up the political left and the 
>political right in today's political world (note that this is not a 
>philosophical measure of right and left -- I think no one can 
>seriously argue that the Democratic Party today is a "leftist" party 
>-- but it is a political measure). Is the Court more or less aligned 
>with the policies and positions of those parties and groups on the 
>political left or the political right in American politics 
>today? Shameless plug -- the research Mitch Pickerill and I have 
>done examining the actual constitutional/legal policies positions 
>taken by the Democratic and Republican parties in their platforms, 
>legislative proposals, and presidential policy statements since the 
>1960s, makes clear that the Court has moved increasingly toward the 
>policies and positions of the GOP over the past 2-3 decades -- on 
>federalism, property rights, the death penalty, abortion, affirmative 
>action, the rights of the accused, etc. Again, not all conservative 
>groups are happy with all GOP policies. Social conservatives for 
>instance, may wish that the GOP supported criminalizing private 
>homosexual behavior (it hasn't), some libertarians may wish the party 
>did not support narrowing the abortion right (but it has). If you 
>empirically examine the issue areas where the parties in fact have 
>staked out clear stands, the Court since 1980 has in nearly every 
>case moved toward the GOP position.
>
>Best,
>CWC
>
>
>
>
>At 05:33 AM 11/1/2005, Earl Maltz wrote:
>>Both Clayton Cornell and Elizabeth Dale have asserted that we have a 
>>"conservative" Court. I suppose the question is, compared to 
>>what? I will grant that a majority of the justices on the Court 
>>were appointed by conservative Presidents (although, in reality, 
>>George Bush the first had no discernible ideology on domestic 
>>issues). But consider the actual holdings of the Court on the 
>>constitutional issues that are of importance to the liberal academic 
>>establishment:
>>
>> a) GLBT rights--more protective than any Court in history.
>>
>> b) Women's rights--as protective as any Court in 
>> history.(with the exception of Nguyen, which is a special case)
>>
>> c) Abortion rights--for all intents and purposes, remain 
intact
>>
>> d) Religious observances in public schools--unremittingly 
>> hostile (although, admittedly, on aid to private schools, Barry 
>> Lynn and his minions are no doubt upset).
>>
>> e) Capital Punishment--more hostile than any Court in history
>>
>> f) Immigrant rights--more protective than any Court in 
history.
>>
>> e) Property rights--protected only at the margins (see Kelo).
>>
>> f) Federalism--Admittedly imposes significant new 
>> constraints on federal government authority to regulate state 
>> governments, but leaves feds free to regulate any private activity 
>> that is even plausibly economic.
>>
>> This is not a list that pleases anyone that I know show 
>> describes himself as consistently "conservative."
>>
>>_______________________________________________
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>

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--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/
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