A friend of mine asked me what I would like to see in a liberal Supreme Court Justice. In my reply, I try to distinguish between political conservatism and liberalism, and judicial conservatism and liberalism.
February 13, 2016
To answer your question, I would like to see a Justice who
...appears to be strongly rooted in the discipline of traditional legal method, evincing a fidelity to text, structure, history, and the constitutional hierarchy. He exhibits the restraint that flows from the careful application of established decisional rules and the practice of reasoning from the case law, and he uses the process-oriented tools and doctrinal rules that guard against the aggregation of judicial power and keep judicial discretion in check: jurisdictional limits, structural federalism, textualism, and the procedural rules that govern the scope of judicial review.This is almost word-for-word a description given by Diane Sykes, 7th circuit court judge, of the Chief Justice John Roberts. And although it is my opinion that the Chief got it wrong on Obamacare, most of his other decisions reflect what Judge Sykes is saying here. And what Judge Sykes is saying here is what everyone - left or right - should desire in a Justice. If a Justice in his confirmation hearing were to testify, "Senators, my methods really aren't rooted in traditional disciplines. I'm really not that concerned with fidelity to the text, structure, and history of the Constitution. I'm not a big fan of stare decisis, and I don't believe in jurisdictional limits or the rules that govern the scope of judicial review," it's unlikely he would get any votes to confirm except perhaps from the 10 most partisan Senators on one side or the other.
"But wait a minute, that's nothing more than saying you want the liberal Justice to be a conservative!" you say. Well, not exactly. A liberal Justice should also use traditional legal methods, and show a fidelity to the text, structure, and history of the Constitution. In other words, the Constitution doesn't mean what the Justice feels that it means. It means what the text, authors' intent, structure, and history show that it means.
That is to say, a politically liberal Justice can still be judicially conservative, and a politically conservative Justice could still be judicially liberal - hence, why liberals believe that cases like Citizens United are also examples of "legislating from the bench." That I may happen to agree or disagree with the decision, and whether that decision is "legislating from the bench," are two separate questions.
When I read the Constitutional text, I make a plain reading first, then I try to understand what that language meant to the framers, or in the case of amendments beyond the 10th, the intent of the people who crafted the amendment (this is especially important in order to correctly understand the Civil War Amendments). Finally, I look at what the language would mean if applied today by its authors. Obviously, on some of the text, e.g. the 19th and 27th amendments (voting rights for women, for people 18 years of age or older), it's pretty obvious. Other times, it is not so clear. Then, I look at the issue in front of me and I figure out whether the issue historically falls under an enumerated power of the federal government or has this issue been traditionally left to the states? I think a good Constitutionalist always applies the 9th and 10th amendments to conclude whether the issue before him is in fact subject to federal jurisdiction.
So, I don't think that doing this basic legal "block and tackling" automatically renders one an arch-conservative jurist like Scalia. And, I think it is possible to hold liberal positions and still adhere to these legal principles. But if the Justice decides a case a certain way based on personal feelings, or disregards the text, structure, and history of the document, or disregards the 9th and 10th amendments when deciding questions of jurisdiction, it's hard for me to support his opinions in the case in question, whether the Justice is (politically speaking) an Antonin Scalia, a Ruth Bader Ginsburg, or somewhere in between.