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Progressives have not just failed to popularize an alternative to judicial conservatism; they have barely even come up with one. No justice in history had a following as large as Ruth Bader Ginsburg’s, but she left behind no school of thought in the way Justice Antonin Scalia did. Former justice Stephen G. Breyer continues to write in favor of a theory of judicial pragmatism in contrast to Scalia’s originalism. None of the Democratic appointees still on the court has adopted it.
When they dissent from conservative decisions, the liberal justices are more likely to accuse the majority of inconsistently applying originalism than they are to dispute it. Or they will cite precedents from the earlier liberal era on the Supreme Court, a tactic that will grow less useful the longer today’s conservative supermajority is in place.
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The new effort by Democrats at the state level is similarly defensive. The New York Times reports groups are setting up a new fund to win governors’ races by highlighting their power to make appointments to the state courts. But none of the Democrats quoted in the Times story say anything about advancing progressive values from the bench. They speak only of upholding “the rule of law,” something Minnesota Gov. Tim Walz contrasts with “supporting an ideology.”
Nobody should have any illusions about such comments. Judges backed by Democrats are, by and large, going to deliver policy results that Democratic politicians like, just as Republican appointees do for Republican politicians. The most charitable way of putting it is that each side has a systematically different view of what “the rule of law” means. That’s true whether judges are appointed by partisan officials or win elections that are effectively partisan.
Wisconsin provides the latest example. Democratic voters there, as in most places, cluster in urban areas while Republicans are more dispersed. Democrats want to maximize their strength in the state legislature by drawing district lines that reflect the balance of partisan voters statewide more than they respect municipal and county boundaries (and, of course, more than they respect Republicans’ desire to maximize their own showing). The swing justice on the state Supreme Court campaigned for the job saying she would tilt toward the Democratic view, and the court has now delivered, which should move the state’s politics and policies in a more progressive direction.
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Looking at these results, one might conclude that debates over judicial method are pointless and that conservatives have won only a rhetorical triumph. If everyone is an originalist, does the term have any content? Jackson, after saying the Constitution is “fixed in its meaning” during her confirmation hearings, joined an opinion saying its meaning could “evolve.”
But the cynical view is not the full truth. Today’s liberal justices are less adventuresome in their legal reasoning than their predecessors were, limiting the scope of their activism. The politics of confirmation hearings have changed, too, with “originalism” no longer used as a marker for extremism, as it once was.
Winning the public debate has made Democrats more cautious and Republicans bolder about who they nominate. It’s one of the reasons conservatives have a supermajority on the Supreme Court — and why progressives have been reduced to seeking solace on state courts.
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Democrats, having lost the Supreme Court, are increasingly turning their attention to putting liberal judges on state courts. The way they are doing it shows they have lost the debate about the role of courts in our democracy, too.
Over the past two generations, conservatives developed a comprehensive strategy, including politically powerful rhetoric, for bringing the federal courts closer to their understanding of the enterprise of judging. Judges shouldn’t rewrite the law in the guise of interpreting it, they said; judges should be umpires, not players taking a turn at bat. Conservatives warned against letting judges have wide leeway to fill in the meaning of apparently vague language, instead urging them to be constrained by what the informed public understood the words of the law meant when it was ratified.
This vision of the judicial role has drawn intense criticism, especially in the legal academy, where conservatives remain a small minority. The most recent high-profile political critique came from President Barack Obama, who often said judges should rule with “empathy.” Obama’s view was already a climbdown from the freewheeling judicial liberalism of the 1960s and 1970s, which he suggested went too far.
But Obama’s modified liberalism didn’t take. During their confirmation hearings, the justices he nominated to the Supreme Court, Sonia Sotomayor and Elena Kagan, explicitly rejected the empathy standard — even though they were testifying before a Democratic-controlled Senate. Kagan went so far as to say that, in a sense, “we are all originalists.” Justice Ketanji Brown Jackson made similar remarks during her hearings.
Progressives have not just failed to popularize an alternative to judicial conservatism; they have barely even come up with one. No justice in history had a following as large as Ruth Bader Ginsburg’s, but she left behind no school of thought in the way Justice Antonin Scalia did. Former justice Stephen G. Breyer continues to write in favor of a theory of judicial pragmatism in contrast to Scalia’s originalism. None of the Democratic appointees still on the court has adopted it.
When they dissent from conservative decisions, the liberal justices are more likely to accuse the majority of inconsistently applying originalism than they are to dispute it. Or they will cite precedents from the earlier liberal era on the Supreme Court, a tactic that will grow less useful the longer today’s conservative supermajority is in place.
The new effort by Democrats at the state level is similarly defensive. The New York Times reports groups are setting up a new fund to win governors’ races by highlighting their power to make appointments to the state courts. But none of the Democrats quoted in the Times story say anything about advancing progressive values from the bench. They speak only of upholding “the rule of law,” something Minnesota Gov. Tim Walz contrasts with “supporting an ideology.”
Nobody should have any illusions about such comments. Judges backed by Democrats are, by and large, going to deliver policy results that Democratic politicians like, just as Republican appointees do for Republican politicians. The most charitable way of putting it is that each side has a systematically different view of what “the rule of law” means. That’s true whether judges are appointed by partisan officials or win elections that are effectively partisan.
Wisconsin provides the latest example. Democratic voters there, as in most places, cluster in urban areas while Republicans are more dispersed. Democrats want to maximize their strength in the state legislature by drawing district lines that reflect the balance of partisan voters statewide more than they respect municipal and county boundaries (and, of course, more than they respect Republicans’ desire to maximize their own showing). The swing justice on the state Supreme Court campaigned for the job saying she would tilt toward the Democratic view, and the court has now delivered, which should move the state’s politics and policies in a more progressive direction.
Looking at these results, one might conclude that debates over judicial method are pointless and that conservatives have won only a rhetorical triumph. If everyone is an originalist, does the term have any content? Jackson, after saying the Constitution is “fixed in its meaning” during her confirmation hearings, joined an opinion saying its meaning could “evolve.”
But the cynical view is not the full truth. Today’s liberal justices are less adventuresome in their legal reasoning than their predecessors were, limiting the scope of their activism. The politics of confirmation hearings have changed, too, with “originalism” no longer used as a marker for extremism, as it once was.
Winning the public debate has made Democrats more cautious and Republicans bolder about who they nominate. It’s one of the reasons conservatives have a supermajority on the Supreme Court — and why progressives have been reduced to seeking solace on state courts.
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