Tuesday, November 01, 2005

An NYT op-ed by Paul Gewirtz and Chad Golder includes some data on the likelihood of Supreme Court judges to overturn congressional laws:

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

It is notable that all the "judicial activists" come out on the bottom while all the conservatives come out on top. So much for the advocates of judicial restraint.

It may be objected that the data set is incomplete: perhaps judicial conservatives are less likely to invalidate state laws. This may be true, but it does not invalidate the point. As Henry Farrell writes,
...the conservative expressed preference for state law over federal law is hardly unrelated to the fact that (a) the state laws at issue are frequently substantively closer to conservative preferences than are federal laws, and (b) that a strong emphasis on states’ rights makes various forms of economic and political regulation much less feasible in an interconnected economy of 50 states. So too for liberals of course, but the point is that humility in the face of democratic legislatures isn’t the driving force here – it’s calculations about substantive outcomes.

One way or another, deference to legislatures has little to do with outcomes of rulings by conservative judges.

See also: A ritual stupidity.


At 12:16 AM, Blogger angela said...

ok have you noticed how many catholics are supreme court judges these days? we are taking over. say hello to president benedict xvi.

At 7:48 PM, Blogger alex said...

Brain Trust
by Franklin Foer
The New Republic

Post date 11.03.05 | Issue date 11.14.05

In 1994, the eminent evangelical historian Mark Noll wrote a scorching polemic about his own religion called The Scandal of the Evangelical Mind. The book lamented the "intellectual disaster of fundamentalism" and its toll on evangelical political and theological thought. All around him, Noll saw "a weakness for treating the verses of the Bible as pieces in a jigsaw puzzle that needed only to be sorted and then fit together to possess a finished picture of divine truth."

While many evangelicals reacted angrily to Noll's description, they tacitly acknowledged his argument with their actions. Evangelicals began aggressively reaching out to Catholics for intellectual aid. That movement reached its apotheosis with the nomination of Samuel Alito to the Supreme Court. With his addition to the ranks of Antonin Scalia, Anthony Kennedy, Clarence Thomas, and John Roberts, all five members of the Court's conservative majority would be Catholics.

This unprecedented Catholic majority, assuming Alito's confirmation, might seem a historical accident. When George H.W. Bush appointed Thomas, it's a good bet that his Catholicism wasn't foremost on the president's mind. But the emergence of the Court's Catholic bloc reflects the reality of social conservatism: Evangelicals supply the political energy, Catholics the intellectual heft.

For much of U.S. history, this alliance would have been unthinkable. Protestants once fought hard to teach the King James Bible in public schools, insisting that every schoolchild consume its subtle description of the Pope as "that man of sin." But shared animus toward abortion provided the initial grounds for rapprochement. And, at about the same time Noll's book appeared, Catholic-evangelical cooperation began transcending any single issue. In 1994, the influential Catholic journal First Things published a manifesto called "Evangelicals & Catholics Together." Its signatories--including Richard John Neuhaus, Pat Robertson, and Bill Bright, founder of the Campus Crusade for Christ--vowed, "[W]e will do all in our power to resist proposals for euthanasia, eugenics, and population control that ... betray the moral truths of our constitutional order."

As an exercise in political coalitionbuilding, this alliance made perfect sense. But evangelicals didn't just need Catholic bodies; they needed Catholic minds to supply them with rhetoric that relied more heavily on morality than biblical quotation. You could see the partnership in countless examples. After James Dobson's Focus on the Family funded a Colorado initiative permitting discrimination against gays, Catholic law professors Robert George and John Finnis testified for the measure in court. Evangelical politicians began borrowing John Paul II's "culture of life" critique of abortion-- a phrase that they also deployed during the Terri Schiavo controversy. Indeed, Catholic conservatism provided much of the case for keeping Schiavo alive, from Tom DeLay's invocation of natural law to the oft-cited warnings about a slippery slope to eugenics.

There's no clearer example of evangelicals dressing themselves in Catholicism than George W. Bush's 2000 campaign. His speeches were rife with talk of "solidarity" and "common good," the language of the social teachings. And the authors of Bush's Faith Based Initiative--the hallmark of his feint toward compassionate conservatism--traced the program to papal encyclicals. Marvin Olasky, the original face of the Bush program, once credited Catholicism with "provid[ing] a structural framework." And, in the end, the campaign was an object lesson in the new alliance. By defending his positions on abortion with phrases drawn from Catholics--"expand the circle of freedom" and "protect the weakest member of society"--Bush simultaneously reassured the hard right and avoided the impression of a Bible-thumping radical.

That's not to say that scandal of the evangelical mind inevitably leads Republican presidents to appoint Catholics. But sociological and political factors have combined with the intellectual to ensure that Catholic lawyers continually dominate the pool of Republican candidates for the bench. For starters, there are so many of them. During the early twentieth century, law provided Catholics with an important vehicle for traveling into the middle class. While Catholics couldn't enter top law schools, they could attend places like Fordham and Villanova. "There was a vast culture of Catholic DAs, lawyers, and judges," says John McGreevy, the author of Catholicism and American Freedom. Even when discrimination against Catholics faded, the law's prestige among white Catholics persisted. After the cultural tumult of the 1960s, and with the rise of the abortion issue, many of these Catholic lawyers wended their way into the arms of conservatism. (Evangelicals have only recently begun to attend elite schools in great numbers and have just begun reinvesting in institutions capable of producing top-shelf intellectuals.)

Then there's the obvious political appeal of tapping Catholics. By nominating a small army of Scalitos, Republicans clearly hope to ply more Catholics from their attachment to the New Deal coalition--a prime GOP project since the days of Richard Nixon's "silent majority." These appointments could also effect a broader change in Catholicism's approach to government. At the same time Catholic conservatives joined the evangelicals in battle, they have simultaneously waged a war against their co-religionists in an attempt to alter the Church's traditional preference for a strong state--a preference that led Catholics en masse to FDR's party and yielded a generation of Democratic politicians (see the Kennedys and Tip O'Neill). Led by Neuhaus and the American Enterprise Institute's Michael Novak, these conservatives want to realign papal teaching with support for an unrestrained market. As Neuhaus, the editor of First Things, has put it, "Capitalism is the economic corollary of the Christian understanding of man's nature and destiny."

Of course, this requires some impressive intellectual gymnastics, since the last Pope and many of his predecessors were potent critics of capitalism. But, by naming five Catholic economic libertarians to the high Court, Republican presidents have unwittingly provided prestige and powerful spokesmen to the conservatism espoused by the likes of Neuhaus and Novak. By helping resolve the scandal of the evangelical mind, they may have provoked a crisis of the Catholic one.

Franklin Foer is a senior editor at TNR.


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