Ackerman Attacks (Neo) Conservative Judges

I had intended to write something about eminent Yale law professor Bruce Ackerman’s recent attempt to shoot down future Bush Supreme Court nominees, but Stuart Buck beat me to it.

At the heart of Ackerman’s screed is his distinction between Good Conservatives (the traditional kind, the ones who frequently vote with liberals) and the new Bad Conservatives, who are “revolutionary.”

There are two very different kinds of conservative. The worldly statesman, distrustful of large visions and focused on the prudent management of concrete problems has long been familiar. But Bush has more often relied on neo-conservatives with a very different temperament. They throw caution to the winds, assault the accumulated wisdom of the age, and insist on sweeping changes despite resistant facts. Law is a conservative profession, but it is not immune to the neo-con temptation. The question raised by the coming vacancies to the Supreme Court is whether American law will remain in conservative hands, or whether it will be captured by a neo-con vision of revolutionary change. The issue is not liberalism v. conservatism, but conservatism v. neo-conservatism.

Good Conservatives, like Sandra Day O’Connor, are, Ackerman says in various places, “seasoned,” “genuine,” “pragmatic”; their “defense of fundamental rights is part of a discriminating philosophy of judicial restraint.”

By contrast, the Bad Conservatives are “extreme” — “remarkably destructive” “radical rightists” who are attempting to promote a “[s]weeping constitutional revolution.” They are in favor of “striking down laws protecting workers and the environment” and they support “the destruction of basic civil liberties….”

I don’t think he likes them very much.

Ackerman is obviously correct to note that the Rehnquist/Scalia/Thomas strand of judicial conservatism is different from that of Justices Frankfurter or Harlan (the second) or O’Connor (if she, in fact, ever was a conservative in any meaningful sense). It is certainly his prerogative to disapprove of it, and even to urge Democrats to filibuster the nomination of any such conservatives in the future, even though his opposition seems to be grounded much more in policy than principle. For example:

The court has recently and most notably reaffirmed the use of well-crafted affirmative action programmes by a vote of five to four, and upheld new statutory restrictions on large political contributions by the same margin. These results will change with a further shift to the right: there will be no affirmative action, and there will be a dramatic cut-back on permissible controls over campaign slush-funds.

I am, of course, most struck by Ackerman’s reference to affirmative action, since his devotion to it is so completely at odds with his ostensible objection to the bad new conservatives’ radical, even revolutionary, abandonment of the principles of the good old conservatives.

In my opinion there has been no more radical, revolutionary, or dramatic reversal in our intellectual or legal history than the liberals’ rejection of their traditional commitment to the formerly core principle that everyone has a right to be treated without regard to race, religion, or ethnicity.

Classifications and distinctions based on race or color have no moral or legal validity in our society. They are contrary to our constitution and laws.

That was not written by Rehnquist or some other radical right extremist. It was written by Thurgood Marshall in his brief for the NAACP in Sipuel v. Oklahoma State Board of Regents, 332 U.S. 631 (1948).

“There is no understandable factual basis for classification by race….”

That was written by neither Scalia nor Thomas but, once again, by Thurgood Marshall, in a brief for the NAACP in Sweatt v. Painter, 339 US 629 (1950). Marshall, in fact, made his reputation by arguing for colorblindness in NAACP briefs written over many years. A few representative examples:

  • racial criteria are irrational, irrelevant, odious to our way of life and specifically proscribed under the Fourteenth Amendment (McLaurin v. Oklahoma, 1950)
  • you cannot use race as a basis of classification (Oral argument, Briggs v. Elliott, 1952)
  • you cannot use race as a basis of classification…. the Fourteenth Amendment compels the states to be color blind in exercising their power and authority…. race is an irrational basis for governmental action under our Constitution (Brown v. Board of Education)

There are many more examples of the NAACP’s devotion to colorblindness, but you get the idea. Nor were the NAACP and Thurgood Marshall alone in making these arguments. Colorblindness, in fact, was a central theme of liberalism for generations.

There is no superior person by constitutional standards. A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner. …. The key to the problem is consideration of such applications in a racially neutral way. …. The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized.

Again, no radical right Republican extremist wrote that. It was written by Justice William O. Douglas, one of the foremost liberals ever to serve on the Supreme Court, in DeFunis v. Odegaard, 416 U.S. 312 (1974)

We cannot agree with the proposition that deprivation based upon race is subject to a less demanding standard of review under the Fourteenth Amendment if the race discriminated against is the majority rather than a minority … and we do not hesitate to reject the notion that racial discrimination may be more easily justified against one race than another….

Regardless of its historical origin, the equal protection clause by its literal terms applies to “any person,” and its lofty purpose, to secure equality of treatment to all, is incompatible with the premise that some races may be afforded a higher degree of protection against unequal treatment than others….

The divisive effect of such preferences needs no explication and raises serious doubts whether the advantages obtained by the few preferred are worth the inevitable cost to racial harmony. The overemphasis upon race as a criterion will undoubtedly be counterproductive: rewards and penalties, achievements and failures, are likely to be considered in a racial context through the school years and beyond. Pragmatic problems are certain to arise in identifying groups which should be preferred or in specifying their numbers, and preferences once established will be difficult to alter or abolish; human nature suggests a preferred minority will be no more willing than others to relinquish an advantage once it is bestowed. Perhaps most important, the principle that the Constitution sanctions racial discrimination against a race — any race — is a dangerous concept fraught with potential for misuse in situations which involve far less laudable objectives than are manifest in the present case….

To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality. The safest course, the one most consistent with the fundamental interests of all races and with the design of the Constitution, is to hold, as we do, that the special admission program is unconstitutional because it violates the rights guaranteed to the majority by the equal protection clause of the Fourteenth Amendment of the United States Constitution.

No conservative, new or old, wrote that. It was written by liberal California Supreme Court Justice Stanley Mosk for a 6-1 majority in the Bakke case, 18 Cal.3d 34, a decision that the Supreme Court should have followed completely but alas did not. As a 2003 article in the San Francisco Chronicle pointed out,

The California Bakke ruling was as notable for who wrote it as for what it said. The author was Justice Stanley Mosk, “the last of the New Deal liberals in California public life,” as Chronicle reporter Bob Egelko wrote when Mosk died two years ago at age 88. Named to the state Supreme Court in 1964 by Gov. Edmund G. (Pat) Brown, Mosk had been a leader in California Democratic politics and won nationwide renown on the court for rulings protecting the environment, consumers and tenants.

He proved that a stalwart liberal — at least one who is true to his professed principles — can oppose racial preferences without apology. “One of the central themes of Stanley’s most important opinions — and I think it can also be seen in his controversial opinion in the Bakke case — is the transcendent importance he attached to simple fairness,” said California appellate Justice Anthony Kline.

Arguably, no jurist in American history has been a stronger champion of civil rights.

Ackerman is agitated that those justices he confusingly calls “neo-conservatives” (by which he means the dangerous and destructive radical right extremists) have abandoned the conservatism that so often led the good old conservatives to vote like liberals. I’m more concerned that today’s liberals have abandoned the liberalism that used to lead liberals to vote like liberals.

ADDENDUM [Feb. 15]

As he promised, President Bush has announced that he is renominating 12 nominees for federal appeals courts who were blocked by Democrats last term, and the Democrats seem determined to continue their obstructionist tactis, as recommended by Professor Ackerman.

Sen. Harry Reid, the new Democratic Senate leader, complained that

We should not divert attention from other pressing issues facing this nation to re-debate the merits of nominees already found too extreme by this chamber.

This odd way of framing his complaint was, at best, disengenuous, inasmuch as the Senate had “found” no such thing. On the contrary, the whole rationale of the Democratic strategy was to prevent the Senate from expressing its opinion, since it was clear to eveyone that most if not all of Bush’s nominees would have been approved by a majority vote.

Now, once again, the Democrats “have vowed to thwart Bush’s nominees, whom they consider too conservative.”

“Too conservative” for whom? For what? If judicial qualifications are to be reduced to how conservative or liberal the nominees are, perhaps we should just drop the charade of qualifications altogether and elect the judges.

The Democrats believe the views of all of these nominees on civil rights are “too conservative.” Let’s see, those would be the same views that the NAACP, all other civil rights activists, and all liberal Democrats themselves proclaimed until they abandoned racial neutrality for racial preferences in the 1970s. Who knew that all those civil rights supporters were so conservative back then….

Say What? (27)

  1. actus February 13, 2005 at 8:33 pm | | Reply

    I’d say a good distinction is the one between Scalia, who respects to some extent stare decisis and the decades of experience since our founding, and Thomas, who is basically an unhinged radical who will change 200 years of law if he thinks John Marshall said something wrong 200 years ago.

  2. Richard Nieporent February 13, 2005 at 8:39 pm | | Reply

    I’m more concerned that today’s liberals have abandoned liberalism.

    That is because today’s conservatives were the liberals of the 1960s and the radicals from the 1960s are today

  3. Richard Nieporent February 13, 2005 at 8:52 pm | | Reply

    Well look who just showed up, our very own racist, actus. Scalia and Thomas vote the same way on almost every decision, but Scalia is a principled individual and Thomas is an unhinged radical. The only unhinged person around here is you actus. Tell us again how much you like Ward Churchill

  4. actus February 13, 2005 at 9:03 pm | | Reply

    ‘Well look who just showed up, our very own racist, actus’

    You’re off to a good start dude!

    ‘Scalia and Thomas vote the same way on almost every decision’,

    I don’t have the numbers, but I don’t agree. They had very different conclusions in the terrorism cases, for example.

    ‘but Scalia is a principled individual and Thomas is an unhinged radical.’

    There’s more to it than which opinion they agree with, there’s their reasoning and lone or unjoined concurrences. Take a look at Lopez to see the extent of Thomas’ radicalism. He wants us back in Lochner!

    Don’t get me wrong though — I do think that thomas has strong principles, its just that his principle (which he stick s to) is one of unhinged radicalism in that rather unconservative — in the sense of cautious defender of the experience of hte past — way.

    Then again, there is the whole matter of how divorced from the text of the 11th amendment the so called textualists have made 11th amendment jurisprudence. So there are limits to principles.

  5. Chetly Zarko February 13, 2005 at 10:04 pm | | Reply

    The 11th Amendment itself is was a bad idea. The founders had it right, as outlined in Chisholm v. Georgia. So much pain in American history goes back to the reactionary politics of the 11th Amendment.

  6. Richard Nieporent February 13, 2005 at 10:22 pm | | Reply

    I don’t have the numbers, but I don’t agree. They had very different conclusions in the terrorism cases, for example.

    Which part of the word almost don

  7. actus February 13, 2005 at 10:41 pm | | Reply

    ‘Which part of the word almost don

  8. Martin A. Knight February 14, 2005 at 7:04 am | | Reply

    I personally think it’s all to the good that we have at least one justice that is not so beholden to stare decisis. Hell, the Plessy decision would not have been reversed were it not for people like Thomas.

    Besides, it seems as if that’s the new talking point for the Left (i.e. Thomas is not respectful of stare decisis … which I should note, in itself, is not a sign of a bad justice.)

    In the end, to me, it’s obvious that the Left’s unique hatred for Justice Thomas may not be motivated by racism … but it definitely has everything to do with his race. It simply unhinges them that a black man could feel that he owes them nothing and be a conservative to boot.

    Who wants to bet that if Barack Obama were to compile a voting record like that of Joe Lieberman, he would not be subjected to torrents of abuse by the very same people who will give Lieberman a pass?

  9. actus February 14, 2005 at 8:56 am | | Reply

    ‘ Hell, the Plessy decision would not have been reversed were it not for people like Thomas.’

    I wonder what his originalist take on Brown is.

  10. Tim Gannon February 14, 2005 at 8:58 am | | Reply

    “Ackerman is agitated that those justices he confusingly calls “neo-conservatives” ”

    Maybe he is a neo-liberal. That is someone who believe in fairness between people of all races, but won’t do anything about it.

  11. what if? February 14, 2005 at 9:32 am | | Reply

    Abandoning Liberalism

    I’ve mentioned many times that some of my gut feelings tend toward liberalism – or, perhaps I should say, what I used to think was liberalism. John Rosenberg of Discriminations demonstrates how today’s so-called liberals seem to run counter to

  12. Martin A. Knight February 14, 2005 at 1:47 pm | | Reply

    actus,

    Personally, I believe Thomas (and Scalia) would have agreed with the ruling on Brown … after all, there is a 14th Amendment and they happen to be more of textualists than originalists (no “emanations from penumbras” for them …).

    What do you think? You think Thomas would have upheld Plessy? The following are Thomas’ own words on his judicial philosophy …

      When struggling to find the right answer to a case, judges should adopt principles of interpretation and methods of analysis that reduce judicial discretion. Reducing discretion is the key to fostering judicial impartiality.

      The greater the room for judicial discretion, the greater the temptation to write one

  13. Martin A. Knight February 14, 2005 at 1:53 pm | | Reply

    What I find interesting is the frequency with which Leftist elites try to tell Conservatives what Conservatism actually is … and how we’re not really Conservatives unless we do what they think Conservatives must do.

    The New York Times loves doing this … I read an article in there trying to use the Jeffords switch to convince Conservatives that Jim Jeffords, despite a voting record like Hillary Clinton, was a real Conservative while Tom DeLay is not.

    I was ill that day but I did learn something … laughter is the best medicine.

  14. Michelle Dulak Thomson February 14, 2005 at 2:55 pm | | Reply

    actus, despite Ackerman, Lopez hasn’t anything at all to do with Lochner. There are two entirely separate issues involved.

    Lopez turned on the Commerce Clause. Thomas’s argument (joined by four other Justices, as you don’t point out) is basically that the Constitutional right of the Federal Government to “regulate Commerce among the several States” can’t reasonably be taken to mean that the Federal Government has a right to legislate on any subject that might conceivably impact interstate commerce, because that would mean that the Federal Government could legislate basically on whatever subject it wanted. Give an ingenious law student a day or two, and s/he could probably come up with an argument for the Federal Government’s right to forbid the sale of nail polish in shades other than pink.

    Lopez was about forbidding the presence of firearms within a certain distance from a school. Here’s Ackerman explaining the dissenters’ logic:

    The nation

  15. actus February 14, 2005 at 3:02 pm | | Reply

    I should have been clearer. I know what Lopez was about. Its the Thomas concurrence that I was concerned with. He wants us to return to the pre new deal era of the commerce clause. An era best exemplified by the laissez fairism of lochner. No he doesn’t want to return to the lochner holding, but the lochner era.

  16. Michelle Dulak Thomson February 14, 2005 at 3:54 pm | | Reply

    actus,

    But that was my point. Lochner is only in Ackerman’s piece and your post to insinuate that Thomas positively wants to revive the Bad Old Days, the ones “exemplified” by a case that’s been excoriated in every high school American textbook I’ve ever seen. That Thomas would almost certainly strenuously disagree with its holding is somehow not pertinent.

    Look, I’ll try again: If the Commerce Clause read as any sane person would read it as a series of words in the English language is obsolete, and in fact Congress ought to be able to regulate any damn thing it feels like that can be connected — by whatever thread of argument, however fine — to interstate commerce, then let’s amend it out of the Constitution. Let’s make it official that there is no Commerce Clause. If no one wants it to be there, that ought to be easy, yes?

    In the jurisprudence you favor, actus, there’d be no such thing as the 19th Amendment. Permit me to prefer a Constitution with my right to vote clearly stipulated in it to one with my right to vote vaguely “interpreted” in and just as likely as not to be vaguely “interpreted” right out again.

    (Actually, as I look down the list of 20th-c. Amendments, I see that the large majority are things that could be gotten to by arguments not a bit more preposterous than the argument that Congress can regulate the presence of guns near schools because it impacts interstate commerce. Amazing.)

  17. actus February 14, 2005 at 4:13 pm | | Reply

    The problem with the lopez concurrence, jurisprudentially, is the reconsideration of the ‘substantial effects’ test, undoing the benefits we have noticed of such a test.

    In general though, adding teeth to the rational basis review isn’t so anethema. Its what Lawrence is based on, for example.

    ‘In the jurisprudence you favor, actus, there’d be no such thing as the 19th Amendment’

    Why not?

  18. Michelle Dulak Thomson February 14, 2005 at 4:26 pm | | Reply

    actus,

    You’ll have to clarify about the benefits of the “substantial effects” test. If the law Lopez invalidated is an example, it really isn’t much of a test, is it?

    ‘In the jurisprudence you favor, actus, there’d be no such thing as the 19th Amendment’

    Why not?

    Well, because women would have gotten the vote via an expansive interpretation of the 14th Amendment, and so there’d have been no need to bother actually putting the 19th in the Constitution. Do you really think that, say, the Warren Court would not have just declared that women could vote?

    And, as I said, I can see the same Court enacting several other Amendments of its own accord (e.g., the income tax, direct election of Senators, the ban on poll taxes, and the granting of electors to D.C. in Presidential elections).

  19. actus February 14, 2005 at 5:23 pm | | Reply

    ‘If the law Lopez invalidated is an example, it really isn’t much of a test, is it?’

    I think thomas was going beyond the lopez law and advocating a return to pre-new deal commerce clause jurisprudence.

    ‘Well, because women would have gotten the vote via an expansive interpretation of the 14th Amendment, and so there’d have been no need to bother actually putting the 19th in the Constitution. ‘

    would have, but they didn’t. This is another way to guarantee it, and they’re not exclusive. But yes, I would much have preferred that long before the 19th women had the vote.

  20. TJ Jackson February 14, 2005 at 6:28 pm | | Reply

    The Left uses the law for its own purposes and having accomplished its results feels free to trash whatever it feels like. This country has seen the Constitution trashed for the past 70 years. Thomas and Scalia often some hope but not much because of the truly demented justices on the court. Original intent is like daylight to a vampire hence the Left’s aversion to it. Its so much better and comforting being able to cite the wisdom and justice of some advanced state like Mugabe’s Zimbabwe.

  21. Michelle Dulak Thomson February 14, 2005 at 7:01 pm | | Reply

    actus,

    would have, but they didn’t. This is another way to guarantee it, and they’re not exclusive.

    Oh, yes they are. Or nearly so. There’d be no point, obviously, in a judge declaring that women had the suffrage once the people (I mean, the then-eligible male voters) had already given it them. And I don’t know offhand of any cases of voters passing a Constitutional amendment affirming what a Supreme Court decision had already made law. Do you?

    I can imagine a campaign to put, say, Roe v. Wade into the Constitution officially, if it were overturned. I haven’t noticed any groundswell of enthusiasm for enshrining it there now, given that Roe is in force.

    So, yes, we’re talking two mutually exclusive paths here, since one has to precede the other and whichever comes first makes the other rather pointless.

    But . . . “guarantee,” actus? You can’t “guarantee” an expansively interpretive Court decision; you can put very plain words into a document, such that it takes considerable doing to “interpret” them in the direction that reaches the result you want. After the 19th, I think it would be very hard indeed to deny that women have a legal right to vote in this country. It would, on the other hand, be extremely easy to deny that they have a legitimate, Federally-guaranteed right to abortion. People do it all the time, and they are not easily refuted, given that the entire “right to privacy” is basically made out of vapor.

    There are still people who think that Constitutional provisions that are clear on their face ought to be changed in language if we want them to means something different. Note, for example, the pathetic belief of the Schwarzenegger-for-President boosters that it would still take a Constitutional amendment to make him eligible to serve as President. Why not just point out that the Constitution is a document of a bygone age, which needs must evolve with the times? (In this case they’d even have a point: the no-foreign-born-Presidents rule was a very sensible one when this was a new nation and there was every possibility of a foreign national still with foreign allegiences getting into the Presidency and wrecking things. Not so now.) But, no, these sad Republicans insist that the words in the Constitution ought to be enforced as they are until we decide to change them. Silly, no?

    There’s a very slim book of Scalia’s that I can’t seem to lay my hands on at the moment (jeez, four months into the move and not all the books unpacked — that’s pathetic, if you like) where he makes what for me is the one crucial point about this matter. Anything “interpretation” gives, later “interpretation” can take away. Anything current “interpretation” emphasizes, later “interpretation” can de-emphasize. And that’s true not only of extra-textual rights like abortion, but even of textual ones. Not to get all hackneyed here, but if the First Amendment were interpreted as narrowly as the Second now is, or the Second interpreted as broadly as the First now is, we’d be living in a very different America. (Or, rather, in two very different Americas.)

  22. actus February 14, 2005 at 7:18 pm | | Reply

    ‘There’d be no point, obviously, in a judge declaring that women had the suffrage once the people (I mean, the then-eligible male voters) had already given it them.’

    I think there would be, and it might happen in dicta too. If that judge was smart they’d sneak it in like Marhsall did with judicial review. But there’s still the fact that that right to vote wouldn’t be as guaranteed as you think it was. Much like the african american right to vote wasnt till the 60’s. Speaking of which, lets all make sure we fight for a proper reauthorization of the VRA. I think it’ll be this summer.

    ‘Not to get all hackneyed here, but if the First Amendment were interpreted as narrowly as the Second now is, or the Second interpreted as broadly as the First now is, we’d be living in a very different America’

    They do have, of course, different language in them. And I do think 2a jurisprudence has been pretty settled for over 60-70 years now no?

    ‘There’s a very slim book of Scalia’s that I can’t seem to lay my hands on at the moment’

    I’ve read it.

  23. Michelle Dulak Thomson February 14, 2005 at 7:47 pm | | Reply

    actus,

    But there’s still the fact that that right to vote wouldn’t be as guaranteed as you think it was. Much like the african american right to vote wasnt till the 60’s.

    Really? Women were denied the vote after the 19th, just like blacks were denied it in the Reconstruction South? I’ve read a good pile of feminist American history, and I don’t remember anyone so much as alleging that women were turned away from the polls.

    [The First and Second Amendments] do have, of course, different language in them. And I do think 2a jurisprudence has been pretty settled for over 60-70 years now no?

    If they hadn’t different language in them, it would have been rather silly to give them different numbers ;-)

    But suppose for a moment that the opening of the First had read

    Free and open discussion of the affairs of the Nation being necessary to the sustenance of a vigorous Democracy, Congress shall make no law abridging the freedom of speech [ . . . ]

    [And yes, I know that the religion clause in fact comes first, and what a mess that pile o’ jurisprudence is. But I digress.]

    Do you think the Warren Court would’ve taken that prefatory clause to mean that only political speech was protected? Or would it have moved right along to film, visual art, literature, the fine distinctions among pornography, obscenity, and “exotic dancing” (and whether it’s different if the nipples are covered), and all the rest of it?

    And before you answer “But the First doesn’t have that language in it,” just ask yourself seriously whether it would’ve made the slightest difference if it had.

  24. actus February 15, 2005 at 9:19 am | | Reply

    ‘Really? Women were denied the vote after the 19th, just like blacks were denied it in the Reconstruction South?’

    I’m not saying after the 19th, but after a hypothetical ‘weaker’ grant of it.

    ‘Do you think the Warren Court would’ve taken that prefatory clause to mean that only political speech was protected? ‘

    Probably not, given the natural law and political philosophy of the enlightenment concerning speech that wasn’t true about guns.

    Now imagine if it had said: “A well ordered intelligentsia being necessary to the safety and security of the state, the right to keep and read books shall not be infringed.”

    Sounds like there would be more restrictions on speech.

  25. actus February 15, 2005 at 11:49 am | | Reply

    oops. that should be ‘well regulated intelligentsia’.

  26. Liberals Against Racial Preference March 10, 2013 at 11:06 am |

    […] Douglas also emphatically rejected racial preferences. (I have discussed Douglas’s position here and here, where I noted that his dissent in DeFunis v. Odegaard, 416 U.S. 312 (1974) was a […]

  27. […] in Brown v. Board of Education. I have quoted a sampling of their views in several  long posts, here, here and […]

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