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Culture War Roundup for the week of June 10, 2024

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It's very common to see conservatives on both sides of an issue, while the liberals overwhelmingly tend to vote as a block…. Many right-leaning court watchers see that as a bad thing, as if the Court's conservatives are wishy-washy and ideologically unreliable.

As far as I can tell, most (thoughtful) conservatives would agree with you that the conservative justices are more principled and unbiased. They just see that as a bad thing since they perceive the liberal justices as defect-bots in an iterated prisoner’s dilemma, and it pains them to see the conservatives cooperating with them. These conservative commenters complain about ideological unreliability because, not being familiar with the field of game theory, they lack the vocabulary to couch their objections in other terms.

I don't think the liberal justices are insincere, exactly. (Actually, I'd need to go back and look at Dobbs to see whether I'll stand by that.) I think it's just closer to turning to asking what Congress/the Constitution/former versions of the court would want, which in practice are interpreted as benevolent entities in accord with their own opinions.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

U.S. Constitution, Preamble

I think the liberal justices, generally, take the underlying sentiment of the Preamble seriously, and see the rest of the Constitution as the means to the ends laid out above. The Supreme Court is one of the major branches of the government thereby established, and so it ought to carry its weight in pursuing the goals of the Preamble. Therefore, the Court ought to promote and defend good policies, and reject bad policies. After all, in doing so, it isn't making policy, but merely exercising judgment to ensure that the popular branches are properly oriented to the "general Welfare."

I'd go so far as to say that about half that logic is uncontroversial, but the remainder draws in some premises that are not shared.

The liberal justices largely follow the dominant philosophy of the American legal profession--legal realism. This philosophy was formulated over a hundred years ago, in its rejection of the dominant mode of thinking at the time, which the realists called 'legal formalism.'

The formalist frame was that every case had an objectively best outcome, determined by applying the governing law to the operative facts. Sometimes judges would fail in this task, and sometimes even the best outcome wasn't very good--or even good at all--but there was a best outcome to be found.

The realists rejected this frame, accusing the formalists of feigning their roles as a disinterested third party merely applying law to facts mechanistically, and instead smuggling in their own policy preferences in determining outcomes. In fact, the realists claimed that this was inevitable: no matter how much the formalists claimed to be acting in good faith in trying to be neutral arbiters, they were actually just another set of partisan actors on the stage of national politics. Since neutral disinterest was only a convenient mask for the formalists, it's all politics anyway, and the realists might as well pursue their own policy preferences unhindered by feigned neutrality.

The core of Justice Scalia's judicial philosophy was a rejection of legal realism, and a return to the narrow conception of the judge's role commonly understood beforehand. While the realists correctly pointed out that no judge could consistently be perfectly disinterested, the ideal of neutrality was too important to jettison, and it is the obligation of every judge to stick as close to that ideal as possible. Judges are not permitted to reject bad policy solely on the basis of its badness; they are only allowed to overturn any policy--good or bad--if it is inconsistent with a controlling authority, and properly presented as part of a real 'case or controversy.'

The liberal justices intend for their decisions to make a difference in the real world. The conservatives, so far as I can tell, are merely engaged in a legal debate society. They'll give the liberals a win out of sportsmanship if they come up with a clever enough argument (e.g. Bostock or McGirt v. Oklahoma) And while they're very insistent on making their points about the law, they'll never engage in the steps necessary to get those points translated into changes on the ground; they don't bother taking follow-up cases to slap down lower courts who didn't get the message. Though they ARE fond of slapping down the Fifth Circuit which does take conservative principles a little too seriously.

And sure they are right if the outcome is limited to the decisions at hand. But Scalia once talked about how he writes his dissents for law students since they are the ones who really have to grapple with trying to understand the law.

Regardless of how liberal or not liberal they are, Scalia heavily influenced numerous lawyers to move towards textualism.

My contention (maybe my cope) is that being honest jurists produces better thought out opinions. Better opinions have a real influence on the next generation. So you end up winning over time.

I think I share that hope/cope. IMO, partisan hacks just aren't going to leave a lasting impression on the judicial culture. Whereas Justices who focus on principled outcomes, like Scalia with his textualist approach, have an undeniable impact (Kagan famously said "We're all textualists now," which has not proved as true as I could wish, but the trend does seem to be in that direction--at least, very few opinions on either side of the Court in recent years have been as nakedly outcome-oriented and political as the decisions of e.g. the Warren court).