The Myth of the Conservative Supreme Court

Posted: Jun 28, 2010 9:31 AM
Ever since the Supreme Court wrongly delivered the presidential election to George W. Bush in 2000, the court has rapidly accelerated its hard-right activist tilt. At least that’s what People for the American Way claimed in a recent piece of left-wing propaganda that parrots several other liberal activist group talking points.

Is the court really hard-right? Did we miss something?

Actually, no, but liberal activists are trying valiantly to create some doubt about that.

The most interesting question is why they advance a claim with such laughably thin support.

With the nomination hearings for Elena Kagan's nomination to the Supreme Court, now is the perfect time to examine what the high court's actual philosophy is.

Every year, the court gravely disappoints adherents of the rule of law.

The court certainly did get some important cases right during the last decade. Yet it is a serious error to just infer that any decision most conservatives agree with was ideologically driven.

This is the them of a smart piece by Todd Gaziano titled "What Conservative Court?" in the July issue of Townhall magazine.

Here's an excerpt from the piece:
Why do many liberal activist groups and pundits assert that the Supreme Court is a tool of right-wing interests? …

Some mythmakers’ perception of mainstream thought is skewed so far to the Left that they don’t recognize a neutral, legal principle when they see one. Liberal elites have a quasi-religious passion for government-enforced racial quotas (what they call “goals”), unlimited federal power to regulate the environment, the economy, and everything else, and for far-reaching limits on political speech, especially for folks they dislike. These tenets of liberal faith go beyond mere advocacy. Floating in their radical bubbles, the activist mythmakers are sufficiently unmoored from reality and consider their views so superior that they can’t fathom how their fellow citizens could honestly disagree with them—unless they are racists, corporate polluters or dangerous proponents of free speech.

The liberal elites’ cramped understanding of (or disregard for) the rule of law is a key cause of the laughable “right-wing” accusations. The philosophical divide between those who want “empathy” judges and those who want “rule-of-law” judges is profound, and while it corresponds roughly with political liberals and conservatives, there are critical differences in how the respective legal philosophies operate.

Certain liberal legal lights and their admirers have advanced a capacious legal philosophy proclaiming that there is very little, if any, objective truth in the law. The sophists of this school argue that studying the text is no less open-ended than any other approach to law. And since they believe all, or almost all, law is subjective, it is imperative for judges to reach “progressive” results. The perfect empathy judge, in their view, reaches the most liberal outcome every time.

Rule-of-law judges and their supporters do not want “conservative” results every time, especially not if the Constitution and statutes do not support that result. The rule-of-law school teaches that judges have a very limited role in our democracy, that the Constitution and laws can be objectively interpreted and fairly applied in almost all cases and that our security comes from a neutral application of legal principles. Rule-of-law judges do not deny that personal bias exists, but they believe it can and should be constrained by the law, not given free reign. The empathy crowd mocks this ideal as impossible to attain, while defenders of the rule of law ask, “Why not try to come close?” …

The war over the courts has been simmering for years, but conservative philosophical gains in recent decades have forced the Left to fundamentally change tactics from openly advocating “non-interpretive” modes of constitutional analysis (I’m not making that up) to pretending to be more faithful, neutral umpires than John Roberts (see Sotomayor’s remarkable pretense of fidelity to the Constitution in her confirmation hearing).

As a consequence, liberals must label any decision they don’t like as an example of “right-wing” activism. This is pure projection, but it’s sensible politics. In politics, the best defense often is a good offense, whether the attack is true or not. In a way, it is triumphant proof that the rule-of-law philosophy is prevailing. All that is necessary now is to show that our reading of the Constitution is correct.
To read the whole thing and to ensure you get the July issue, subscribe to Townhall magazine today.