Strictly constructing or constructing strictures?

This weekend the NYT published an article by Jeffrey Rosen, the legal affairs editor at the New Republic and one of the best writers on legal issues, providing a brief review of the promises and perils of judicial appointment. The article was entitled Can Bush Deliver a Conservative Court?, a question likely to elicit puzzlement from those who believe we already have a pretty conservative court. Rosen points out that Reagan and George the First's efforts to appoint "strict constructionists" (if that means socially conservative justices) were not very successful. A quick review of the data indicates that, excluding memoranda and equally divided decisions, cases in the Rehnquist Court since the appointment of Clarence Thomas have split 650 conservative to 477 liberal (as coded in Harold Spaeth's Supreme Court database.) Sure, that's more conservative than liberal, but not overwhelmingly so.

A conventional account of the Court's recent jurisprudence holds that the "moderates," O'Connor, Kennedy, and Souter, frequently join with the conservative justices to strike down acts of Congress when congressional authority is opposed to state authority, but join with the liberals to strike down state actions that infringe upon individual rights, thus producing what Keck accurately refers to as "The Most Activist Supreme Court in History." Still, even that understanding suppresses interesting complexity, as fissures can be found even among the liberal and conservative blocs of the Court.



For instance, despite the warm reception Justice Scalia received at the Federalist Society meeting over the weekend when the subject of his ascending to the center chair came up, Scalia hasn't always voted with the socially conservative angels during his tenure as an associate. He voted with the majorities in Texas v. Johnson and U.S. v Eichman, the flag-burning cases, and wrote the majority opinion in Employment Division v Smith, holding that there was no religious exemption to generally applicable drug enforcement policies, a decision that was widely held to infringe on religious freedom and led to the overwhelming adoption by Congress of the Religious Freedom Restoration Act. Before one thinks that Scalia is the only occasional defector, it should be noted that the Chief Justice wrote for a majority earlier this year, in Locke v Davey, that the First Amendment did not require a state to extend otherwise generally available scholarship money to students pursuing religious vocational education. Rehnquist's opinion, wisely, noted that states should have considerable freedom to decide what their own commitments not to establish religion require. Scalia dissented of course, despite arguing in the Smith case that state legislatures should be free to make religious exceptions to generally applicable laws in pursuit of free exercise commitments. I guess states can do what they will to benefit religious practice, but not to avoid providing public support to churches, as Scalia sees it.

To return to the topic, the current Court has, in the eyes of social conservatives, a mixed record. Even the unrealized doctrinal fruits that modern legal conservativism has produced are related to economic regulation, including an impending takings interpretation in Chevron v Lingle, to be decided this term. Rosen's article arguably mischaracterizes the activist spree the Court has taken since the mid-90s, since the wave of congressional enactments struck down in that time hasn't related to anything as structurally coherent as the "constitution in exile" although the threads are there in the revival of limits to the Commerce power and state sovereign immunity.

President Bush appears to have focused attention on potential justices with good conservative credentials on social issues, at least according to this article. Naturally, Roe is a high-profile target, in which case Bush only needs to flip two votes, but replacing Rehnquist won't get him any closer to that goal. Only if Bush gets to replace O'Connor and Stevens or Ginsburg with an anti-Roe vote will he be able to reverse it, assuming that Breyer and Souter don't mysteriously die.

Whether a relationship can be drawn between "strict constructionism" and "originalism" or "judicial restraint" or whatever other interpretive methodological buzzword that might come up (legal scholars have been stressing the connection between originalism and textualism for some time now) is less important than what really seems to be going on. Despite the emphasis on interpretive methodology, justices' commitments to method are less important, to the presidents who select them and the public who lives under their judgments, than the policy commitments that the justices bring with them. Legal scholars argue at length that interpretive methodologies work as constraints, producing consistency, predictability, and control over the decision-making of judicial actors, but time and again we are reminded that justices' behavior cannot be predicted by their interpretive commitments. Scalia, despite his public commitment to originalism, doesn't always rule as he believes the founders would have intended. Rather, justices' commitments to interpretive methods follow from their commitments to the outcome of legal controversies. As Rosen points out, the degree to which Bush gets what he wants out his judicial appointments depends on the degree to which the Court's agenda focuses on the issues he chose the justices to influence.