Judicial Variations--Jurisprudes, Ideologues, and Partisans

There are three paradigmatic types of Supreme Court justices—the jurisprude, the ideologue, and the partisan. While no actual Supreme Court justice perfectly represents the ideal, some present pretty close approximations. It is hard to understand or predict the results of Supreme Court cases without determining how a particular justice fits into these types.

The jurisprude is a justice committed to a particular method of judging rather than an particular set of results. On the current Court the examples par excellence are Justices Antonin Scalia and Clarence Thomas who are committed to originalism. From the past Justice Hugo Black was a textualist and Felix Frankfurter, his sparring partner, advocated an historical jurisprudence. These jurisprudential commitments frequently lead to unusual ideological results. Justice Scalia (and Justice Thomas as well) vote for criminal defendants based on their close readings of  the language of the Constitution, like the Confrontation Clause. For originalist reasons, Justice Thomas is no friend of preemption claims with the result that in his opinions businesses often lose to state tort law and regulation. Despite being a New Deal populist as a Senator, Black as a Justice wanted to enforce the Contract Clause against debtors.

The ideologue is a justice who is strongly right or left of center as that is defined in his day and votes that way. Justice William O. Douglas may be the best example, relentlessly upholding the left’s expansive view of government regulation of business, but pushing forward the left’s deregulation of social relations.  Because they are focused on results, not methods, ideologues often write jurisprudentially untidy opinions like Douglas’ outlandish performance in Griswold. There he found a right to contraception based on the “penumbras” of almost every amendment in the Bill of Rights.

There were elements of the ideologue of the right in William Rehnquist who stated that he wanted to rebalance society after the Warren Court, itself full of ideologues, had led to excessive protections for criminal defendants and insufficient protections for federalism. On the current Court, Ruth Bader Ginsburg is perhaps closest to the ideological type. For instance, her dissent in Hobby Lobby, in which she held corporations could not exercise rights under RFRA, flew in the face of the Dictionary Act which expressly states that corporations come within the statutory definition  of a “person.”  Her shout outs to Congress to overrule Supreme Court interpretations of statutes also suggest her willingness to step outside a jurisprudential role.

The partisan is a justice who both reflects the partisan positions of the faction of party from which she is appointed and also sometimes calculates the effect of the decisions on the fortunes of her party. A partisan does not necessarily have a coherent ideological view of the world, because parties are above all coalitions designed to win elections and that may require the yoking together of factions rather than the expression of ideology. An example of a justice who reflected partisanship may be Sandra Day O’Connor. When she was active in the Republican party, abortion rights were supported by many of her fellow activists. Moreover, her pivotal vote in Planned Parenthood v. Casey, the case that refused to overrule Roe v. Wade, came shortly before the 1992 election. It was widely thought that a decision to overrule Roe would have been damaging to George H.W. Bush’s reelection prospects, because it would have made abortion a more salient issue, harming him with upscale surburban female voters. Many Republican presidential candidates may be secretly hoping that Justice Anthony Kennedy helps them in this election cycle by taking same-sex marriage off the table by declaring it to be a national right.



Behind the “-Isms”

The use of -isms distracts us from the basic question: what political and private institutions are better at matching people to capital?