Bring on the nukes

Mon Oct 31 10:12:42 PST 2005

Elizabeth's post only highlights what should be obvious -- the 
"conservative" movement that has been ascendent in American politics since 
at least 1968 is not monolithic.  The New Right coalition that has put the 
GOP in power is made up of various ideological groups -- libertarians, 
traditional (Burkean) conservatives, neoconservatives, and social/religious 
conservatives.  New Right appointments to the courts are also fragmented by 
various judicial philosophies -- Scalia's formalism, Posner's pragmatism, 
O'Connor's minimalism, etc.  These groups share enough overlap that they 
function in the electoral arena, but when it comes to constitutional values 
the divisions become more prominent.

One of the problems with commentary about the Court is that folks continue 
to discuss it in "attitudinalist" terms -- as liberals vs. conservatives -- 
when, as Sean Wilson argued on this list a while back, the attitudinal 
variation on the Court has been reduced or squished over the past 25 
years.  We now have a Court that is nearly all "conservative" and so the 
relevant question is how different strands of conservatism overlap or 
conflict in any given case.  Nearly all the interesting SCOTUS decisions in 
recent years (e.g. Grutter, Lawrence, Casey, Hamdi, Rasul, etc.) involve 
splits among conservatives.  And understanding how these ideological and 
jurisprudential divisions within the New Right interact is key to 
understanding the Court's decision-making.

Shameless plug:  Mitch Pickerill and I have a piece forthcoming in the 
Georgetown Law Review that explains the Rehnquist Court's decision-making 
in criminal justice using this approach.

CWC

At 09:17 AM 10/31/2005, Elizabeth Dale wrote:
>If you think that there is still a Democratic Party that will go to the 
>mat on behalf of even a modest collection of liberal values, Sandy, you 
>are a greater optimist than I. But I'm infamous for claiming that Bill 
>Clinton was a conservative moderate (as opposed to a moderate 
>conservative), so it's probably just that I am both literally and 
>figuratively out in left field.
>
>At the risk of wasting everyone's time, I wonder if we could go back to a 
>thread that started and then disappeared, without resolution, at the end 
>of last week. After however many years it's been that I've been part of 
>this list, and after ten years of teaching in South Carolina and Florida 
>(where my students are often, though not exclusively, self described 
>conservatives) I confess I still don't understand what unites 
>conservatives in this country, even on the relatively simple matter of the 
>proper course for the Supreme Court. In the past several years, I've seen 
>posts to this list asserting that true conservatives:
>
>* put the ideal of state's rights first, on the ground that states (and 
>their courts?) are the best representatives of popular will and shared values,
>* oppose a line of cases from Roe to Lawrence which, some assert, are 
>inconsistent with the country's moral norms,
>* prioritize overruling the line of cases (which may go back to Meyer and 
>Prince, and surely goes back to Griswold) creating the right to privacy 
>because there is no such right in the constitution,
>* wish to kill for once and for all the idea of substantive due process,
>* wish to return to a better understanding of substantive due process 
>and/or restore its protection of economic rights,
>* wish to reduce the government (state and national) role in order to 
>increase individual freedoms (which may or may not include the right to 
>abortion), or
>* wish to replace decades of precedent that have misinterpreted the 
>constitution (an originalist approach that, depending on the proponent, 
>calls for striking down everything from Marbury to Brown to Lawrence, or 
>simply some of those cases).
>
>Ignoring the issue of whether any part of that list is conservative 
>(though I note in passing the interesting article on the "father of 
>conservatism" in a recent New Yorker), it strikes me as an agenda that 
>contains any number of internal contradictions: One can oppose abortion on 
>the grounds it involves the killing of unborn life, and yet support both 
>Griswold and Lawrence and a right to sexual privacy. Likewise, one can 
>favor a return to economic versions of substantive due process, and wish 
>to keep Roe and Casey in play as means to that end. One can believe that 
>the country has a shared moral vision that is compromised by Roe, and 
>believe, as a result, that we must not only reverse Roe and Casey but also 
>use federal laws (and perhaps a constitutional amendment) to make sure 
>that no state departs from those values. One can oppose any claim of 
>national norms based on a robustly Calhounist view of state's rights that 
>emphasizes the need to protect the rights of states that swim against the 
>national tide (for example by alowing abortion, or by favoring 
>segregation). One could argue that it is cases like Meyer that laid the 
>basis for cases like Yoder, and that without the idea of family-privacy 
>that Meyer established we lose home schooling and religiously tinged 
>educational diversity it allowed. And so on.
>
>To tie this back to Sandy's post, I suspect if a fillibuster or other form 
>of opposition to Alito does emerge it will do so not because of the 
>Democratic Party, but because enough people decide that at some point 
>(Griswold? an originalism that cannot reconcile Brown to the history of 
>the Fourteenth Amendment?) his philosophy goes too far. That might happen 
>because "the left" mobilizes, but it could also happen because some people 
>who identify themselves as conservative decide that they are not prepared 
>for a court that rethinks Griswold or Brown or state's rights or whatever. 
>That may not happen, people may swallow hard and say that they'll take 
>losing Griswold to get something else, but then again, maybe not. There 
>are, in my experience, a fair number of people who feel tense about 
>abortion, but feel quite strongly about ensuring easy (or easier) access 
>to contraception, or who want more active campaigns to encourage condom 
>use to prevent HIV/AIDS.  Are all the people on this list who oppose Roe 
>prepared to give up Griswold? Is everyone who favors state's rights 
>prepared to let states make decisions about abortion access, birth 
>control, whether to encourage condom use, or whether 12 year olds should 
>learn German?
>
>I ask this, to steal Sandy's line, in the true spirit of inquiry. I spend 
>much of my time reading postings to this list genuinely confused about the 
>philosophies animating people who apparently see themselves as allies 
>united against liberal constitutionalism. And if someone wants to point me 
>to a law review article or book that sets out the conservative consensus, 
>that's fine too. Perhaps even preferable, since I will have something to 
>refer students to as well.
>
>
>Elizabeth Dale
>
>Associate Professor, US Legal History, Department of History,
>Affiliate Professor of Legal History, Levin College of Law
>
>University of Florida
>PO Box 17320
>Gainesville, Florida 32611
>
>edale at history.ufl.edu
><http://plaza.ufl.edu/edale>http://plaza.ufl.edu/edale
>352-393-0271 ex 262
>
>
>
>----------
>From: conlawprof-bounces at lists.ucla.edu 
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
>Sent: Monday, October 31, 2005 10:43 AM
>To: CONLAWPROF at lists.ucla.edu
>Subject: Bring on the nukes
>
>Being my usual irresponsible self, I say fight this to the end and force a 
>vote on the nuclear option.  If the fillibuster works, no Alito (or Jones, 
>Brown, OwenN etc.). If it doesn't the Democrats could end up losing the 
>battle but winning the war, since President Clinton or Edwards or whoever, 
>with 50 Democrats in the Senate plus the VP, could actally appoint some 
>liberals, which will never again happen (at least in my lifetime) if the 
>filibuster is retained.
>
>This is yet one more opportunity to disprove the proposition that the 
>Democratic Party, to the extent that it exists at all, is utterly and 
>terminally brain dead.
>
>Sandy
>- Sanford Levinson
>(Sent from a Blackberry)
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