November 3, 2005

A conservatism of judicial restraint.

In today's NYT, Adam Liptak and Jonathan D. Glater take up the question of Alito's dissents. They uncritically cite Cass Sunstein's take on 41 opinions (viewed critically here yesterday) and repeat Sunstein's meme: "his dissenting opinions are almost always more conservative than the majority's." But they also provide some other statistical information that complicates that conclusion. There is this:
Academic studies of dissenting opinions generally predict that judges appointed by Republican presidents will dissent more often in cases in which both of the other judges on three-judge panels were appointed by Democratic presidents.

But Judge Alito does not follow that pattern: he dissented in 4 cases in which both of the other judges were appointed by Democrats and in 26 in which they were both appointed by Republicans.
And this:
The Supreme Court rejected the position set out by Judge Alito in a dissent in an abortion case. But in at least three other cases, it adopted the position advanced in his dissent.

Frank B. Cross, a law professor at the University of Texas who has compiled a database tracking how the Supreme Court reviews appellate decisions, said: "This is the highest of anyone in the database. It shows that when his court took an important and controversial case and got it wrong, from the perspective of the Supreme Court, he identified that and dissented. Indeed, his dissent may have been part of what got the Supreme Court's attention."
Liptak and Glater don't manage to pull out any inflammatory dissents, and they seem most drawn to the conclusion that his brand of conservatism is not the pursuit of politically conservative outcomes but simply judicial restraint:
One theme that runs through Judge Alito's dissents is deference to the views of the people and the agencies closest to the facts and thus, in his view, best situated to make decisions.
There are, we need to recognize, varieties of judicial conservatism. If you want to characterize a judge as a conservative, please tell me what kind of conservative you mean.


Simon said...

The goal of the propagandist is not factual accuracy, Ann. ;)

Mike said...

I'm sticking by my own reading of the dissents: Alito is not the conservative the conservatives think he is. Besides, even 100 dissents in the 3rd circuit over the course of 15 years wouldn't be THAT many dissents and Alito has far less than that--even fewer when there was actual disagreement on substantive law.

More to the point, he's written 10 times as many opinions where he, in fact, was in the majority (not to mention the many more where he wasn't the author but was still in the majority. By that rationale, he may in fact be more liberal than people think. I'm also using the seemingly common description of the the 3rd circuit as liberal. If in fact, the 3rd circuit is liberal and Alito dissents sometimes, how conservative can he really be?

Alito may just be "judicially conservative" in the sense that he's a by-the-books-defer-to-the-legislature-don't-needlessly-expand-the-rule-announced jurist. Frankly, as a moderate, I'd be very happy with someone like that.

I think the biggest problem is that people are over-simplifying Alito's opinions (which is strange since they're fairly simple and straight-forward anyway). But, I think that the Administration wants that view: if we simplify we can make him out to be the conservative we can sell to the remaining 35% of the country that supports us.

Gerry said...

The pattern continues, Ann. Another log on the fire; another tidbit of information that is making this particular conservative even more excited about Alito.

Henry said...

Maybe Alito is more Rehnquist than Roberts. I'm thinking of the minimalist Rehnquist who made it his mission to lessen the SCOTUS workload.

Isn't there something ironic here? Alito seems to be the anti-Miers, the nominee with a huge paper trail, and unbelievable legal chops, but because of his masterful judiciousnous, no one actually knows how he will vote!

Al Maviva said...

Ann, you have a disturbingly detailed knowledge of conservative taxonomy. I notice you’ve made distinctions recently between social and economic conservatives; political and legal conservatives; outcome-oriented legal conservatives and process/restraint-oriented legal conservatives. It’s as if you know, or once knew a conservative. For a professor in a mainstream law school, this is incredibly disturbing. How did this happen? Did a professor on staff at Madison have a mental breakdown and register Republican? Did you get drunk one night, and inadvertently have intercourse – oral intercourse, of course – discussion - with a conservative who explained our take on judicial restraint and restoring decision making authority to the legislatures? What happened?

You must stop immediately. Otherwise, we conservative attorneys (Yes! I’m out of the closet! I’m a process-oriented conservative, a judicial restrainer!) will become less exotic, less fearsome, and more mainstream. People may start understanding how we win cases on separation of powers, abrogation, comity, preemption, standing and state sovereignty grounds, and how we often cut down the most complicated arguments simply by pointing over and over again to the face of the text. Shhhhhhh… Please, for my sake, do not explore the differences between “strict constructionism” [sic.] and textualism. And for God’s sake, don’t let anybody know that the Fed Soc isn’t the legal equivalent of the Knights Templar.

We have a scary reputation to uphold, and you aren’t helping. Don’t make me call Ralph Neas, now…

Charlie (Colorado) said...

Well, obviously, Alito is a conservative of the scary, bad, evil, racist, nasty variety.

Troy said...

Ann wrote... "Liptak and Glater don't manage to pull out any inflammatory dissents...."

First off... That sounds very painful.

Alito is a true conservative which means he makes principled decisions based on a reasonable reading of the statute or Constitution -- regardless of his personal views.

It's distressing, and telling, how many are willing to wet their fingers, test the wind, and discard the oath they took. I think we need both hands during swearing in ceremonies because too many people are crossing their fingers on their left hand. I don't want judicial activism of either stripe.

Troy said...

Oh and mmmbeer -- love the name -- and the sentiment it expresses.

Mike said...

troy -
I'm glad you like the name, but I think you're confused about something.

One does not ordinarily make "principled decisions" without reference to something "personal". Arguably, you can make principled decisions in all kinds of directions. They always reflect some personal choice. There's hardly an issue that doesn't require wieghing and unfortunately, there's not much of an objective way to do that. At some point you ARE making a value judgment.

Your comment is thus pointless and typical of those that think that "conservatives" have the monopoly on "principled decisions". I'm sorry, that's just stupid.

I would urge everyone to stop and think about what it means to have a conservative judicial philosophy, which IS NOT the same as being a political conservative. During the time of FDR, one could be judicially conservative while simultaneously upholding some of the most progressive legislation in history.

On the other hand, you could be a very activist judge while simultaneously going out of the way to destroy progressive legislation/rights. In fact, someone striking down Roe v. Wade would very likely be anything but judicially conservative.

I have very little tolerance for arguments like that. Very little.

Troy said...

Re-reading my post it certainly seems I meant that. I never meant (nor meant to imply) that conservatives have a monopoly on principle. Everyone has principles and some even stick to them. If we were chatting over the aforementioned beers it would come out better you understand.

Overturning Roe would not be in my definition of "judicial activism" because it would be overturning an activist (and quite principled) decision. Creating rights ex nihilo or stepping on the proper roles of the Leg. or Executive is activism whether it's Lochner or Roe and I don't like it.

Texas vs. Johnson is a "liberal" decision (arguably, but for the sake of this post) politically because it upheld an anti-Reagan protest, but it was the right and principled decision based on a reasonable reading of the First A. Stare decisis is great as far as it goes, unless the initial case in the line is fundamentally wrong -- which I believe Roe is -- moral questions aside.

Perhaps, and I've been contemplating this anyway, it's better to save "conservative" and "liberal" for the politicians and use "activism" and "restraint".

I wouldn't want a court to strike down a gay marriage law passed by the CA legislature (assuming everything was done constitutionally, etc.) even though the outcome would be "conservative".

Troy said...

Yes of course people make reference to things "personal" when making decisions, but there can be a higher principle of judicial restraint over "don't agree with gay marriage" or "think abortion should be legal".

There's no 100% objective way to do that as you rightly point out, but a restrained judge seems to try a bit harder at exegesis where activists practice eisegesis which provides no real standard.

vnjagvet said...

The LA Times article today quoted Professor Joel Friedman, a Yale classmate of Alito's:

"Ideology aside, I think he is a terrific guy, a terrific choice....He is not Harriet Miers; he has unimpeachable credentials. He may disagree with me on many legal issues — I am a Democrat; I didn't vote for Bush. I would not prefer any of the people Bush has appointed up until now.

"The question is, is this guy [Alito] going to be motivated by the end and find a means to get to the end, or is he going to reach an end through thoughtful analysis of all relevant factors? In my judgment, Sam will be the latter."

"The latter" describes the kind of "process conservative" I support.

Troy said...

"Process conservative" seems a good description. I think Alito (though I haven't had time to wade into his opinions yet) will be great -- if these descriptions hold true.

Performing Bear said...

My two favorite statements of judicial restraint (as posted on my blog):

1. From the opinion of Wisconsin Supreme Court justice Robert Hansen in State v. Waste Management, Inc., 261 N.W. 2d 147, 151 (1978):

"An appellate court is not a performing bear, required to dance to each and every tune played on an appeal. Here appellant raises twenty-nine challenges to a judgment of conviction. However, we find the challenges to fit into five categories and will discuss each category. Any of the twenty-nine issues raised and not discussed in any of the five categories can be deemed to lack sufficient merit or importance to warrant individual attention."
posted by Performing Bear at 10:20 AM 0 comments

2. Cardozo, J, from the Judicial Process:

"[A] judge . . . is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains.