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Thursday, March 31, 2016

The key reason conservatives care about Supreme Court appointments

Given the current status of the Supreme Court after the passing of Justice Scalia, and the various maneuvers by politicians on both sides of the aisle regarding the appointment of another jurist to the Supreme Court, it might be helpful to look at an older piece by legal scholar Orin Kerr exploring the importance that conservatives and Republicans (not always the same thing) put on Supreme Court appointments. Read his thoughts here. Kerr hits the nail right on the head when he writes:
Let me paint with a very broad brush and offer my best explanation. The primary reason, I think, is the nature of the Supreme Court's docket in the last fifty years. During that period, most high profile Supreme Court constitutional law decisions have considered whether to ban practices embraced by conservatives rather than whether to ban practices embraced by liberals. For conservatives — especially social conservatives, and especially religious conservatives — the question has been whether the courts will allow their views, not whether the courts will mandate them. Think about abortion, school prayer, gay rights, flag burning, the death penalty — you know, the real "hot button" issues. In each of these areas, a victory for the conservative side means that the political process is left unaltered. On the other hand, a victory for the liberal side means that the court intervenes and mandates that the majority preference — the generally conservative view — is out of bounds. That's generally the opposite of the experience for those on the liberal side of the political spectrum over the last few decades. For liberals, the key question usually has been whether the courts will mandate their views, not whether the courts will allow them. On most of the hot button issues, a victory for the liberal side means that liberals are saved the trouble of going through the political process. A loss doesn't mean their view is not permitted, only that the issue is dealt with in the elected branches like most other issues.


Tim Kowal said...

Whatever isn't forbidden is required.

Rich Rostrom said...

The one exception being the right to keep and bear arms.

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