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« Political Science and "Measuring Liberalism" | Main | What the Segal/Spaeth "Research" Showed »
Sunday
Jan252009

Comparing So Called Justice Liberalism Across Time

[sent to conlaw prof re: whether Stevens, Ginsburg, etc, are moderates or "liberal"]

 
... I find it interesting that many in the academy are ready to say that the "Court has shifted to the right." If you would list the things that right wing justices agree with today and compare them with what right-wing justices believed in legal culture in the 1950s, I bet one would say that conservative justices themselves have shifted slightly to the left. All that really happened is that during the Warren era and in the 60s, America went through turbulent social and cultural progression. Why the 60's should be the focal point and not an outlier is something only that a liberal academy that lionizes this era has to explain. Now that the innovation is over, you have more pragmatic-oriented judging all across the line, that's all.  It's not that people "aren't as liberal" -- it's that what is "liberal' was always dependent upon historical circumstance to a large extent. When Marshall and Brennen and Douglas died -- their peers,
generation and world died out somewhere along the way, too.  There is no "that is liberal" apart from these things. All that one could properly say is that the current justices aren't New Dealers with the goal of retro-fixing the liberty state so that it isn't antiquated  anymore. Not that they are not "liberal" once these transformations have occurred.   

The comparisons of views across epochs are difficult because the facts change on the ground. If the crime problem develops into semi-automatic weapons and areas where police don't even drive anymore, well, your framers' idealism really has an implementation problem. So you get pro-police state decisions until the facts on the ground change again, in which case you get some sort of a new synthesis in another direction.

It isn't "liberal," its culture, generations, facts and pragmatism -- all mixing with a judge's psychology and his or her doctrinal construct.  I don't know how fruitful it is to compare this stuff across time. I think the only people who would really know this properly would be biographers. Only they can really compare psychologies and intricacies at a rich level. 

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