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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.

Reader Discussion

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on April 27, 2015 at 10:25:46 am

The ideologue is a justice who is strongly right or left of center as that is defined in his day and votes that way….

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.”

Ah, the failure to express sufficient deference to the Dictionary Act – a clear sign of an ideologue.

Yet the very same definition that identifies a corporation as a “person” makes no distinction between huge, publicly-traded multinationals and closely-held corporations. Yet Alito, Roberts, Scalia, Kennedy, Thomas included the wholly irrelevant qualifier “closely held” in their Hobby Lobby decision EIGHT TIME (plus once in Kennedy’s concurrence), including in the concluding “The contraceptive mandate, as applied to closely held corporations, violates RFRA.

Hell, if you’re gonna include wholly irrelevant criteria, why not make the holding, “The contraceptive mandate, as applied to corporations in the first half of the alphabet, violates RFRA”?

But move along, folks. There's no ideology to see here. Just keep on moving....

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nobody.really
on April 28, 2015 at 11:00:14 am

Nobody:

Interesting take on this. Yet< I am not so sure that the *closely held* phrase is indicative of ideology (it may be, but I just ain't so sure). ( BTW: For supporters of SSM, I would think this should be seen as a small victory - after all, it does tend to imply that big bad corporations may not be so protected under RFRA). If the Court is attempting to limit this to closely held, it would seem to rule out large multi-national corporations. Consider the potential for mischief should, say, the Osama Bin Laden Bakery and Construction Company, decide to set up operations in the USA. Would we be required to institute pockets of Sharia law / custom? would patrons of this fine bakery be required to bow down to Mecca in order to purchase a cannoli?, etc. etc.

I suppose I would have been OK with a ruling that said that only sole proprietorships were covered not corporations under the theory that the enhanced financial protections offered to corporate entities place such entities in a different relationship to the body politic than does the sole proprietor who must expose himself / herself to significant personal financial risk.
Then again, this coming from someone who thinks that the definition / application of personhood for a corporation should be limited to certain due process rights. In fact, if one could figure out a way to cover the "media" corporations and their "free" campaign contributions, I would prevent corporations from making any campaign contributions at all.

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gabe
on April 28, 2015 at 15:18:57 pm

Ah, but that's just the kind of thinking I'd expect from an ideologue such as you.

I might well embrace your argument as a matter of policy. But courts are not supposed to be in the policy business; they're supposed to be in the enforcement business. This is the basis for McGinnis's conclusion that Ginsburg is an ideologue: When confronted with the plain text of the Dictionary Act including "corporation" within the meaning of "person," Ginsberg nevertheless concluded that the RFRA did not apply to Hobby Lobby.

To McGinnis, the plain language of the statute is all that matters. Giving consideration to the centuries of jurisprudence advising courts to treat skeptically any corporation that is being used as an alter ego of its owners -- and you can't get more alter-ego-y than to impute your religion to a for-profit corporation -- that does not mark you as a learned jurist; it marks you as an ends-driven ideologue.

Yet the court majority, confronted with the same Dictionary Act, then feels free to impose its own extra-statutory limitation on the language.

In short, I might well embrace your views as matter of policy. Or I might well embrace the court majority's views as a matter of policy (and Kennedy basically does). But I wouldn't characterize my fellow jurists as ideologues for doing the same thing I was doing. Rather, I'd recall the words of another jurist -- ideologue or not, it is for you to say:

I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written upon the subject. For in such matters everything turns upon the spirit in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will....

Learned Hand, In commemoration of fifty years of federal judicial service, 264 F.2d xxxvii (2d Cir. 1959).

I wonder what the Dictionary Act says about the word "hypocrisy"?

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nobody.really
on April 28, 2015 at 18:35:47 pm

BTW:

You know this statement was referring to me:

"Then again, this coming from someone who thinks that the definition / application of personhood for a corporation should be limited to certain due process rights"

So I suppose in that sense, I, too, become an *ideologue.*
I think, however, that it is perfectly fine for a knucklehead such as myself to espouse such a policy prescription; where I tend to agree with McGinnis is that it is less so for a jurist - or, at least, the jurist should be somewhat more adept at cloaking their policy prescriptions (as we both know that jurists do engage in such behavior - and will continue to do so).

As for Learned Hand, is he saying that acquaintance with the *great works* is sufficient justification for *policy prescription* or is he saying that one should use this acquaintance with these works to inform one's jurisprudence and one's understanding of what, perhaps, the historical basis is of the text. I suppose, I prefer the latter. I would, however, concede that such an acquaintance may be helpful, if not required, when formulating one's interpretive methodology.

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gabe

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