The Right-of-Center Constitutional Divide | Eastern North Carolina Now

    Publisher's note: The author of this post is Mitch Kokai, who is an Associate Editor for the Carolina Journal, John Hood Publisher.

    RALEIGH     "What's the conservative position on this issue?" "Why do conservatives think x about y?" "All conservatives agree about this, don't they?"

    Spend much time discussing politics with people who are not conservative, and you're bound to face questions of this type.

    If you want to have a little fun, you can respond with a question of your own. Like Monty Python's King Arthur, who distinguishes between African and European swallows, you might ask for a clarification: "What do you mean? Traditionalist conservative? Libertarian? Classical liberal?"

    For a more serious response, you can preface your answer with this caveat: Conservatives often hold a range of opinions about hot-button issues of the day.

    Some divisions among right-of-center thinkers and partisans appear subtle. Others are based more on emphasis and style than outright disagreement. But some point to major differences in the way the opposing sides approach the role of government in our lives.

    It's this last sort of division that animates Damon Root's new book, Overruled: The Long War for Control of the U.S. Supreme Court. Root, a senior editor at the libertarian Reason magazine, focuses on two contrasting approaches to constitutional law, both of which have strong footholds among conservatives.

    Those who follow the current Supreme Court's politics have heard about a four-member conservative bloc, a four-member liberal bloc, and Associate Justice Anthony Kennedy, a Republican appointed by Ronald Reagan who nonetheless ends up playing the frequent role of swing voter in 5-4 decisions. But that simplified ideological assessment can prove problematic.

    Take, for instance, one of the most high-profile cases in recent history: the legal challenge to Obamacare in National Federation of Independent Business v. Sebelius. Kennedy sided with the "conservatives" in that case, yet a 5-4 vote preserved the liberal president's controversial health care reform law. Instead of Kennedy, Chief Justice John Roberts broke from the "conservative" ranks to join the liberal bloc in preserving the Affordable Care Act.

    "To say conservatives were outraged at Roberts would be putting it mildly," Root reminds us near the beginning of his book.

    "But Roberts had not actually betrayed legal conservatism; he had simply followed one of two possible conservative paths in the case. Judicial restraint, as Roberts well understood, was not only a touchstone of the Progressive left; it was also a philosophy adopted by many members of the modern right.

    "Conservative icon Robert Bork, for example, the former Yale law professor and federal judge whose failed 1987 Supreme Court nomination had galvanized Republicans and set the stage for future judicial confirmation battles, was an outspoken proponent of granting ... deference to the elected branches of government.

    "As Bork argued in his bestselling book The Tempting of America, the 'first principle' of the U.S. system was not individual rights; it was majority rule, which meant that when it came to the vast preponderance of political disputes, the courts should simply butt out. 'In wide areas of life,' Bork wrote, 'majorities are entitled to rule, if they wish, simply because they are majorities.'"

    Conservatives who wanted Roberts to strike down the health care law were relying on an opposing approach to constitutional questions. "Instead of seeking judicial deference, they wanted the justices to nullify President Obama's signature legislative achievement and overrule the elected branches of government - something the Supreme Court had not done since the great legal battles over Franklin Roosevelt's New Deal in the 1930s."

    "This was the other conservative path, the one Roberts refused to take. ... It too has its roots in the legal and political controversies of the late 19th and early 20th centuries. Except this school of thought was not inspired by [liberal Supreme Court Justice Oliver Wendell] Holmes, but by the legal figures who opposed him: the conservative and libertarian judges and lawyers who rejected judicial deference and worked instead to strike down many of the laws imposed during the Progressive and New Deal eras."

    Root devotes the rest of his book to setting out the history of these different approaches, often characterized as judicial activism versus judicial restraint.

    Though the narrative is crafted more as history than as advocacy for one side or the other (a point Root emphasized during an April 2 speech in Raleigh for a local Federalist Society chapter), it's clear that the activists - those pushing for judges to strike down laws that limit individual freedom - are the heroes of Root's story.

    They draw their inspiration from jurists such as Stephen Field, appointed by Abraham Lincoln to the U.S. Supreme Court in the middle of the Civil War. "The aggressive legal approach once associated with Justice Field and his successors has come roaring back to life in the early 21st century," Root explains. "Its modern followers have no patience with judicial restraint and little use for majority rule. They want the courts to police the other branches of government, striking down any state or federal law that infringes on their broad constitutional vision of personal and economic freedom."

    Root takes readers inside the activists' strategy sessions. Libertarian lawyers decide "through painstaking work" which issues to push, what types of plaintiffs to represent, even when to file a particular lawsuit to take advantage of Supreme Court trends.

    Given the attention paid to the activists, it's likely that fans of judicial restraint will consider that Root has given their arguments short shrift. In addition, the author spends little time rebutting the dominant liberal view of the "living Constitution," a document adaptable to judges' assessments of our changing society.

    For this reason, the book's subtitle is misleading. The "long war for control of the U.S. Supreme Court" certainly includes both libertarian and conservative fights with Progressives who adapt their judicial philosophies to suit the outcomes they prefer in particular cases. Root spends little time on those battles.

    Still, any reader interested in the way the Supreme Court addresses high-profile constitutional disputes will find Root's observations valuable. Plus he has given conservatives a good resource for reminding those on the political left and in the middle that there is no monolithic right-wing approach to political and public policy disputes.
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Comments

( May 14th, 2015 @ 3:30 pm )
 
The easiest way to figure who is the Conservative---is to look for butt cracks . . .
( May 7th, 2015 @ 5:36 am )
 
I like the paragraph about "Courts should butt out . . ."

There is a story told of one appointed Judge who did not "do as expected." When the critics confronted him about "How could a __ (fill in in the blank) Judge like you do this?

His answer was: "When I took my oath it was 'to support and defend the Constitution.' My decision was NOT based on my political leaning, it was to do as I vowed as I took my Oath of Office, my friend. I ONLY interpreted the Constitution of the United States of America --- as it was intended --- by those who wrote the words long ago."



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