Posted by Ilya Somin:
Is Justice Souter a "Burkean" Conservative?
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241762435
Prominent constitutional law scholar Michael Dorf claims that Justice
Souter's jurisprudence is not really liberal. Instead, he argues that
Souter should be considered a "Burkean" conservative:
[W]hat should we make of the characterization of Souter as a
liberal [by John McGinnis]? I am quoted in the same[1] National Law
Journal article [link inserted by IS] describing Souter as a
conservative, albeit a very different sort of conservative than
Justice Scalia--and for that matter, Justices Thomas, Roberts and
Alito. Perhaps I can explain what I meant with an analogy to the
battle now raging over the future direction of the Republican Party
and conservatism more generally.
The media have tended to describe the intra-Republican/conservative
fratricide as pitting purists against pragmatists. But that framing
of the debate, in my view, concedes far too much ground to the hard
right, the self-described true conservatives, for it is only very
recently that much of what we now associate with conservatism
became the orthodox conservative view: Economic libertarianism;
international unilateral interventionism; and state enforcement of
traditional morality. New England/Rockefeller Republicans
represented an older, more moderate brand of conservatism in the
literal sense: dedicated to conserving the best of the status quo,
and thus cautious about, though not irresolutely opposed to,
change. David Souter was and is very much part of that older
tradition.
Likewise in jurisprudence, conservative true believers (like
McGinnis) now talk as though originalism is and always was the only
legitimate and certainly the only conservative methodology. Yet
originalism as now espoused is a relatively recent creation, dating
roughly to the beginning of the Reagan Administration. Before that,
the epitome of judicial conservativism was the second Justice
Harlan, who greatly valued precedent, supported civil rights, and
dissented from what he regarded as those Warren Court decisions
that went too far too fast. He was not, however, a conservative in
the current sense...
Justice Souter admired Justice Harlan and there are clear traces of
Harlan in Souter's body of work. Souter respects precedent and
tradition but does not fetishize either.
Dorf is right to suggest that Justice Harlan was a conservative of
sorts, and that his jurisprudence might be considered a conservative
alternative to that of Scalia and others. However, Dorf is wrong in
claiming that Souter's work is similar to Harlan's. As Dorf points
out, Harlan can be considered a conservative because he dissented from
many of the Warren Court's major liberal constitutional decisions,
such as [2]Miranda v. Arizona and [3]Baker v. Carr. By contrast,
Justice Souter has voted with the liberal side on virtually every
important contested constitutional issue that has come before the
Court during the last 16-17 years of his tenure. On affirmative
action, federalism, property rights, the death penalty, separation of
powers, campaign finance, and just about every other constitutional
question, Souter was a reliable liberal vote.
Souter did vote with the conservatives on a few disputed
constitutional cases during his first year or two on the Court (e.g. -
[4]New York v. United States, an important federalism case); but that
period apparently came before his migration to the liberal side was
complete. He has not voted with the conservatives on any contested
constitutional case since then (by which I mean a case that wasn't
decided by an overwhelming margin such as a 9-0 or 8-1 vote). Souter's
votes during that period are largely indistinguishable from those of
the Court's liberal Democratic-appointed justices, such as Ginsburg
and Breyer. Perhaps Dorf would consider them to be "Burkean
conservatives" as well. But that stretches the concept so far as to
rob it of any useful content.
Souter also cannot be considered a "Burkean conservative" because he
showed little if any deference to precedent or tradition when these
conflicted with liberal jurisprudential goals. For example, he voted
to set aside longstanding precedent and tradition in gay rights and
death penalty cases. It's hard to find even one important
constitutional case where Souter voted against a position preferred by
liberals because he thought it went too far in rejecting tradition or
precedent. If Burkean conservatism has any meaningful content at
all,[5] it is a strong presumption in favor of the validity of
longstanding traditions and hostility to rapid social change.
I do not mean to criticize Souter for not being a Burkean
conservative. To the contrary, [6]I have been very critical of Burkean
conservatism myself. I think that Burkean conservatives pay far too
much deference to tradition, and sometimes underestimate the benefits
of rapid change (especially when the status quo is very bad). I
believe that Souter was wrong about many issues; but not because he
rejected Burkean conservatism.
Be that as it may, Souter's jurisprudence was far from being Burkean.
To paraphrase, [7]Lloyd Bentsen, I serve on the same blog with
[8]Burkean [9]conservatives; I know Burkean conservatives; some
Burkean conservatives are friends of mine. And Justice Souter is no
Burkean conservative.
References
1.
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202430383742&A_notsoquiet_legacy_for_the_stealth_justice&slreturn=1
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=436
3. http://en.wikipedia.org/wiki/Baker_v._Carr
4. http://www.law.cornell.edu/supct/html/91-543.ZS.html
5. http://volokh.com/archives/archive_2008_05_04-2008_05_10.shtml#1209934165
6. http://volokh.com/posts/chain_1209769710.shtml
7. http://en.wikipedia.org/wiki/Lloyd_Bentsen
8. http://volokh.com/archives/archive_2008_05_04-2008_05_10.shtml#1209967061
9. http://volokh.com/archives/archive_2008_05_04-2008_05_10.shtml#1209993975
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