ROBERT AYERS: Is there such a thing as a ‘Conservative Justice?’

April 3, 2019

ROBERT AYERS: Is there such a thing as a ‘Conservative Justice?’

We conservatives, whether natural born or converted, have long possessed a certain immunity from liberalism, the modern epidemic. In some areas, however, this disease has found a way to get past our natural defenses. This is especially true with regard to the judiciary.

Over the past two weeks, major news outlets, ranging from the left-leaning CNN to the right-leaning Fox News, have drawn attention to the so-called conservative justices on the U.S. Supreme Court parting ways in three different cases. What the media is missing is that what they call a “conservative Supreme Court justice” is really just a Supreme Court justice that is trying to apply the law, not a politician trying to advance a partisan agenda. 

The subject matter of the three cases is not of particular relevance. But for those who missed it, one involved maritime law, another the taxation of a Native American tribe in Washington state, and the most recent the religious freedom of a man on death row.

In all three cases, the High Court’s newest members, Justices Brett Kavanaugh and Neil Gorsuch, took opposite sides. In the religious freedom case, Kavanaugh also departed from Justice Clarence Thomas.

As news outlets suggested, there must be a problem here, right? Someone has forsaken the faction. After all, Kavanaugh, Gorsuch, and Thomas are supposed to be the Court’s right wing, its conservative constituents. And, being firmly planted in red territory, they should always agree, no?

If you are a conservative and believe this, then I am afraid that you have been infected by liberalism.

The main source of the problem is that such terms as “liberal” and “conservative” were never meant to be applied to members of the judiciary, who are supposed to be apolitical. But today, you will rarely hear a justice’s name mentioned without one of those qualifiers nearby.

Because the term “liberal judge” refers to those who enact liberal legislation, people have been tricked into thinking that a “conservative judge” is one who enacts conservative legislation, or who adheres to the conservative agenda (whatever that is).

If this were indeed the case, then, Justices Gorsuch, Kavanaugh, and Thomas, starting with a desired outcome, would always agree.

But in actuality, a “conservative justice” is one who conserves the traditional role of the judge as an impartial, unbiased, apolitical, defender of the rule of law. And with such an approach, decisions can vary.

Those who dispute this notion will point out that conservative justice X makes the decision a political conservative would most of the time. But what such individuals don’t understand is that a Justice Thomas, for example, never starts from the outcome he wants – he starts (and finishes) with the law.

The same cannot be said for liberal justices, in whose opinions the law is often hard to find. This is especially the case whenever the Court relies on the legal fiction called “substantive due process.”

For at least the past fifty years, judges have used this idea to read certain fundamental rights into the Constitution which they claim exist in the document’s “penumbras and emanations.” In other words, substantive due process has become a way for the left to get around the democratic lawmaking process, allowing it to enact policies that by vote would never have succeeded.

Members of the left may think that they get a lot of good things accomplished with this doctrine. But they often forget that it was first used by Justice Roger B. Taney in the famous Dred Scott decision to protect slavery for the South. Just like the left today, Taney thought he was doing a good thing by independently “solving” the problem that was pulling the country apart.

But inevitably, judicial activism makes the situation worse. With the realization that modern liberal judges make law and the false notion that conservative judges do the same, the High Court has become politicized. The most obvious examples of this were the turbulent nominations of Gorsuch and Kavanaugh. After all, if judges are lawmakers, we had better make sure we get our guy in there, and the other side ought to do what they can to prevent it.

The law is key to maintaining order in this country, and as liberals fail to uphold it and apply it blindly – which is the purpose of the very real procedural due process clause of the constitution – chaos is on the rise.

If we think of a “conservative judge” as one who enacts conservative policy, we contribute to the chaos and are no better than the left. And further, we insult those who pride themselves on their impartiality.

Insisting on the correct definition of a “conservative judge” is no mere vocabulary lesson. It is crucial to the integrity of our legal system, and the well-being of our country.

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Robert Ayers

Robert Ayers is a writer for Conservative Institute. He has a Bachelor’s degree from Quinnipiac University and a JD from the University of Connecticut.