Stevens, Ginsburg, Breyer, and Souter as "moderates"?

[Sean Wilson]

... I find it interesting that many in the academy are ready to say that the "Court has shifted to the right." If you would list the things that right wing justices agree with today and compare them with what right-wing justices believed in legal culture in the 1950s, I bet one would say that conservative justices themselves have shifted slightly to the left. All that really happened is that during the Warren era and in the 60s, America went through turbulent social and cultural progression. Why the 60's should be the focal point and not an outlier is something only that a liberal academy that lionizes this era has to explain. Now that the innovation is over, you have more pragmatic-oriented judging all across the line, that's all.  It's not that people "aren't as liberal" -- it's that what is "liberal' was always dependent upon historical circumstance to a large extent. When Marshall and Brennen and Douglas died -- their peers,
 generation and world died out somewhere along the way, too.  There is no "that is liberal" apart from these things. All that one could properly say is that the current justices aren't New Dealers with the goal of retro-fixing the liberty state so that it isn't antiquated  anymore. Not that they are not "liberal" once these transformations have occurred.   

The comparisons of views across epochs are difficult because the facts change on the ground. If the crime problem develops into semi-automatic weapons and areas where police don't even drive anymore, well, your framers' idealism really has an implementation problem. So you get pro-police state decisions until the facts on the ground change again, in which case you get some sort of a new synthesis in another direction. 

It isn't "liberal," its culture, generations, facts and pragmatism -- all mixing with a judge's psychology and his or her doctrinal construct.  I don't know how fruitful it is to compare this stuff across time. I think the only people who would really know this properly would be biographers. Only they can really compare psychologies and intricacies at a rich level. 
 
Dr. Sean Wilson, Esq. 
Assistant Professor
Wright State University
New Website: http://seanwilson.org
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860




________________________________
From: Kermit Roosevelt <krooseve at law.upenn.edu>
To: David Bernstein <DavidEBernstein at aol.com>
Cc: "Volokh, Eugene" <VOLOKH at law.ucla.edu>; conlawprof at lists.ucla.edu
Sent: Sunday, January 25, 2009 8:00:29 PM
Subject: Re: Stevens, Ginsburg, Breyer, and Souter as "moderates"?

I think "given the political climate of the times" is the whole point.  
If you look at where the positions now held by the left of the court  
on those issues were over the past forty or fifty years, they were  
generally centrist. That the Court has shifted right makes them  
liberal in a relative sense, but the people who call them moderate are  
probably trying to suggest that a slightly broader view might suggest  
otherwise.

Kermit Roosevelt
Professor of Law
University of Pennsylvania Law School
3400 Chestnut St.
Philadelphia PA 19104
215.746.8775

On Jan 25, 2009, at 7:53 PM, "David Bernstein"  
<DavidEBernstein at aol.com> wrote:

> What would strike me as fair is to look at their votes on the hot- 
> button
> issues of the day.  Off the top of my head:
>
> (1) Unwilling to acknowledge any limits whatsoever on Congress's  
> Commerce
> power
> (2) For a virtually unlimited right to terminate pregnancy
> (3) In favor of permitting government to consider race for "benign"  
> reasons
> in virtually any context, and, given Gratz, perhaps agree with the  
> position
> of the dissenters in Bakke
> (4) In favor of limiting executive power (it used to be the liberals  
> who
> wanted to expand executive power, and the conservatives who wanted  
> to limit
> it, but that's another story), including by referencing  
> international law
> and treaties, including treaty provisions explicitly rejected by the  
> Senate.
> (5) Willing to read First Amendment rights narrowly in circumstances  
> that
> favor liberal political outcomes (Dale, campaign finance reform, etc)
> (6) In favor of treating the lack of an antidiscrimination policy as  
> the
> equivalent of discrimination (Romer v. Evans dicta they joined)
> (7) In favor of expansive standing and expansive interpretation of  
> statutes
> in discrimination and environmental cases
> (8) Consistent "anti" votes in every federalism case
> (9) Consistent "anti" votes in property rights cases, notably Kelo
> (10) Voted against finding an individual right to bear arms
>
> And so on.  This may not amount to "liberal" if the standard is  
> Justice
> Brennan (or law professors), but if the standard is the political  
> climate of
> the times, and the current constitutional debates that the political  
> and
> ideological partisans on each side care about, it certainly doesn't  
> qualify
> as "moderate."
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Kermit  
> Roosevelt
> Sent: Sunday, January 25, 2009 7:21 PM
> To: Volokh, Eugene
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Stevens, Ginsburg, Breyer, and Souter as "moderates"?
>
> I think the claim is that they're moderates with respect to their
> views about constitutional law, not politics. You might have a reason
> not to compare them to the set of people who study constitutional law,
> which seems the obvious choice, but even if that's so, I don't think
> the public is an appropriate substitute. You could try supreme court
> justices over the last fifty years, and then I think they do look
> moderate.
>
> Kermit Roosevelt
> Professor of Law
> University of Pennsylvania Law School
> 3400 Chestnut St.
> Philadelphia PA 19104
> 215.746.8775
>
> On Jan 25, 2009, at 5:06 PM, "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> wrote:
>
>>  I've often heard statements that Stevens, Ginsburg, Breyer, and
>> Souter are "moderates" rather than "liberals."  Now I agree that they
>> aren't Brennan, Marshall, or Douglas, and I'd probably call them
>> "moderate liberals."  But I don't quite see how they become out-and-
>> out
>> moderates, especially when it comes to Stevens and Ginsburg.
>>
>>  I take it that "moderate" shouldn't just be "moderate compared
>> to the median of the legal academy," given that the legal academy is
>> generally such a liberal group; it would presumably mean something
>> like
>> "moderate compared to the general population."  And if you look at  
>> the
>> general population, it seems to me that
>>  (1) there are several areas where Stevens and Ginsburg are to
>> the liberal side of the public at large ("liberal" being defined as
>> fitting the modern liberal movement, and not "liberal" in some
>> abstract
>> philosophical sense) -- the right to bear arms, religious displays in
>> public places, probably abortion rights (the median voter would, as
>> best
>> I can tell, endorse quite a few more abortion restrictions than
>> Stevens
>> would and likely than Ginsburg would), and as to Stevens apparently
>> the
>> death penalty --
>>  (2) there are some areas where Stevens and Ginsburg are probably
>> not far from the public at large,
>>  (3) there are some areas which are under the public's radar
>> screen, and
>>  (4) there are no areas where Stevens and Ginsburg are to the
>> conservative side of the public at large.
>>
>>  Am I mistaken, either on #1 or #4? And if I'm right, then isn't
>> it pretty clear that Stevens and Ginsburg, and to some extent Breyer
>> and
>> Souter, are basically moderate liberals, not moderates?
>>
>>  Eugene
>> _______________________________________________
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