PUBLISHED:September 11, 2008

Bush appointees to Supreme Court fail to revive judicial conservatism, says David Strauss

In spite of the solid conservative credentials of President George W. Bush’s appointees to the Supreme Court, judicial conservatism is dead, University of Chicago law professor David A. Strauss told a capacity Duke Law audience on Sept. 10.

A constitutional law scholar, former assistant U.S. solicitor general, and frequent Supreme Court advocate, Strauss delivered the first in the Program in Public Law’s “Lessons Learned” series of lectures that probe the legal and constitutional legacy of the Bush administration.

“I think [the death of judicial conservatism] is an accurate description of one the things that history will say about the Bush administrations appointments to the Supreme Court,” Strauss said.

He warned his student and faculty audience not to misinterpret the title of his lecture, “The Death of Judicial Conservatism.”

“It is not to say that [judicial conservatism’s] opposite — liberalism or a progressive vision of the Supreme Court — is somehow alive,” he said. “I think it is clearer than ever that people who hoped for a revival of the Warren court, of a court that had an agenda to be at the forefront of social reform in a generally liberal or progressive direction, had better give it up at least for a generation.”

Still, there has been no “conservative triumph,” Strauss noted, because the Court does not appear to make decisions based on any lucid conservative philosophy.

Outlining several fundamentally conservative judicial philosophies — originalism, judicial restraint, federalism, and libertarianism — Strauss argued the current Supreme Court does not adhere to any of them.

The philosophy of judicial restraint, “namely that the courts should not overturn the actions of the people’s elected representatives except in extreme cases,” has coherency and academic advocates, Strauss said. “If Congress or the state legislatures do something truly irrational, truly indefensible, then, but only then, should the courts step in and declare it unconstitutional.” But the Court has no clear record of actually making decisions based on the idea of judicial restraint — sometimes characterized as the “rule of clear mistake,” he added.

“It is fair to say that no one has held this view consistently, certainly nobody on the Court today,” he said.

Recent decisions have also shown that the conservative justices don’t subscribe to a federalist philosophy that views the Court’s mission as protecting local and state governments from an overbearing federal government, according to Strauss. He offered the Court’s 2007 decisions in the cases known as Parents Involved in Community Schools v. Seattle School District, No. 1. as “dramatic evidence” that the protection of local prerogatives is not what “this so-called conservative court sees at its mission.”

“The school boards in these cases used racial criteria in order to bring about school integration,” he explained. “The Supreme Court said that what they were doing was unconstitutional, the two Bush appointees voted with the majority. Chief Justice Roberts wrote the prevailing opinion, a fairly strongly worded prevailing opinion.

“Think about it for a second: Here you’ve got local school boards addressing a local problem, an intensely difficult local problem having to do with sensitive issues of education and racial dynamics, using their judgment and deciding that they want to address the problem in a certain way, and the Supreme Court in Washington telling them that they couldn’t do it.”

The conservative Supreme Court justices are not making decisions based on a libertarian ideology either, Strauss told his audience. The idea driving such a philosophy, that government is the biggest threat to individual liberties and the courts are there to limit that threat, has been contradicted by conservatives on the court, most notably in the court’s June decision in Boumediene v. Bush.

In that case, the Court’s conservatives, including Bush appointees Roberts and Associate Justice Samuel Alito, dissented from the majority opinion that the right of habeas corpus review applies to enemy combatants and prisoners held at Guantanamo Bay.

“The reason those people are in Guantanamo is because the government wanted to keep them in a place where it could control them completely, but where, the lawyers in the executive branch thought, the courts’ writs would not reach,” Strauss said. “That was the explicit rationale for holding them in Guantanamo.”

“[The conservatives’] considered judgment was all in favor of giving deference to the executive branch,” Strauss said. “Maybe that’s right, maybe it’s wrong, [but] it’s not libertarian.”

Strauss concluded that judicial conservatism in the Bush era simply doesn’t exist, except insofar as some justices identify themselves as conservatives, and are appointed by a conservative administration.

“We are left with a conservatism that, while it calls itself conservative, is unable to articulate any coherent conservative creed,” he said.

A number of students in attendance questioned Strauss about the politicization of the judicial process generally, and the Supreme Court confirmation process specifically. Strauss conceded that politics can bump up against the judiciary in uncomfortable ways, but warned against oversimplification.

“You could say, ‘Look, I’ll tell you what judicial conservatism is in our age — it’s the political agenda of the Republican party.’” Strauss said. “To a degree, yes, but maybe not entirely. It’s a little uncharitable, I think, to say just that. We don’t really have enough evidence of that, especially with the two new appointees who may branch off from that in interesting ways.”

The Lessons Learned series will continue Oct. 7 with a consideration of the Bush administration and science by Sidney Shapiro, University Distinguished Chair in Law at Wake Forest University.