News analysis
The enigma of the moderate Republican judges: the mystery of the Leftward migration

July 16, 2005
Fred Hutchison
RenewAmerica analyst

Seven of the nine justices of the Supreme Court were nominated by Republican presidents. Those who had a conservative track record prior to nomination have remained conservative on the Supreme Court. The three judges who fit this category are Antonin Scalia, Clarence Thomas, and William Rehnquist. Therefore, only three of the seven Republican choices are conservatives.

The block of three conservative votes is routinely offset by a block of three liberal votes from John Paul Stevens, David Souter, and Ruth Bader Ginsburg. Two of these three liberal judges were chosen by Republican presidents. Stevens was selected by Gerald Ford, and Souter was selected by George Herbert Walker Bush (the elder Bush).

The liberal block of judges are much more consistent in their votes than the conservative block. Last year, I did a quick and dirty tally of 5-4 and 6-3 votes during the term ending June 2004 and found that the liberals voted together an amazing 95% of the time and the conservative block voted together 60% of the time. Are the liberals steadier or are they trapped in group-think? Part of the explanation of liberal consistency is the influence of liberal-minded law schools, elite law journals, and the freshly-minted liberal law clerks who serve the judges.

Are the conservative judges more independent-minded or are they torn by the conflicting opinions within the conservative movement? Part of the explanation for the conservative diversity of votes is a schism on legal issues between traditional conservatism and the libertarian philosophy. Libertarians tend to be free-thinkers and to shun consensus. As such, they are the least predictable of all the political philosophies. In the spectrum of predictability, a liberal block of opinion is the most predictable, and maverick libertarians are the least predictable.

Consistency on the left wing of the court and diversity of opinion on the right wing suggests that judges who are ideologically unmoored will drift to the left. A judge who has no legal philosophy and is drifting on intellectual tides will be passively washed in the direction of consensus and solidarity. This means slowly drifting leftwards towards shore, until the raft comes to rest on the sandbar of intellectual stasis. A drifting Republican judge, however, has difficulty finding port at a liberal anchorage. That is why Republican judges run aground on sand bars. Stevens and Souter are exceptions to this general rule because they are Republican nominees who have become members of the group-think liberal block.

A movement to the right in this court requires a muscular swimmer who will fight the tide as he powers his way towards the open waters of independent thought. All of the recent drift has been to the left, indicating that judges with passive temperaments are more likely to be nominated and approved than judges who are intellectually vivacious. The most intellectually gifted and independent-minded judge in a generation was Robert Bork, who was nominated for the Supreme Court by President Reagan in 1987. The Bork confirmation hearings by the Senate Judiciary Committee resembled a shooting gallery. Usually, in order get their nominees through the gauntlet of the Senate committee, Republican presidents have preferred quieter, more mediocre nominees who they hope will be "stealth" conservatives. These hopes have been dashed as all the stealth conservatives turned out to be stealth mediocrities who were content to passively rest on their rafts and quietly drift to a left of center sandbar. Mediocrities do not swim against the tides.

Ideological impasse and 5-4 votes

The impasse between the three conservatives and three liberals has meant that close decisions have been decided by the moderate judges. Unfortunately, the two moderate judges who are swing votes in close cases were appointed by Republican presidents who mistook them for conservatives and failed to foresee their leftward drift.

The liberal block of judges have won more than their share of 5-4 votes for several reasons. For one thing, the liberal block is more consistent in their votes than the conservative block. This has attracted justices like Stephen Breyer--not a member of the diehard liberal block--to lean left of center and join liberals in close votes. Another factor is that the two swing voters--Sandra Day O'Connor and Anthony Kennedy, both Republican nominees--are mushy on culture war issues, tending to pull them toward the liberals on critical matters. Still another factor is that the law clerks who work for the judges are mostly graduates of liberal law schools and have a powerful influence on judges who lack a firm judicial philosophy of their own.

The O'Connor migration

Sandra Day O'Connor was nominated by Reagan because he wanted to be the first to nominate a woman for the court. He assumed she was OK because she was an insider in the Republican circles of Barry Goldwater's Arizona. However, the lady had no paper trail to provide a clue about her judicial philosophy. Sure enough, she had no philosophy whatever, and always navigated towards the dead center of whatever political spectrum she found herself in. In Goldwater's Arizona, the Republican center was relatively conservative. On the Supreme Court of the last twenty years, the center was far to the left of Goldwater's Arizona. Possessed of no legal philosophy to guide her, O'Connor had no paddle to steer her raft as she passively drifted left.

O'Connor was influenced by legal interns more than any other judge before her. Since she had no philosophy to guide her thought, she often turned to her interns for guidance. The interns were almost exclusively the product of liberal law schools. They found a receptive and impressionable audience as they entered O'Connor's office with liberal philosophies and agendas. O'Connor's search for the center and her interest in the "feel" of a case kept her from drifting as far left as her interns might have liked. However, in close cases when O'Connor was undecided, the interns did their best to pull her left for a 5-4 liberal victory.

The libertarian surprise

Another recurring phenomenon is the unpredictability of the Republican nominated judges because of major rifts in conservative philosophy. A judge with a mixture of both conservative and libertarian beliefs might look like a conservative to the president who nominated him. However, during close Supreme Court votes on culture war issues, the hidden libertarian within the judge might come out of the closet to find common ground with the liberal judges.

A perfect example is Anthony Kennedy, who was nominated by president Reagan after the Senate Judiciary Committee rejected Robert Bork. Kennedy is not lacking in originality of thought, but his inner conservative is often checked by his inner libertarian. Therefore, he has little resistance to leftward drift and has gradually floated from right of center to left of center. In all the culture war cases involving privacy and free choice, Kennedy has voted with the liberals. Privacy and free choice are core values of the libertarian philosophy that trump all other considerations.

The conservative movement has allied with libertarians in order to win elections. The immense number of American voters who are hyper-individualists but lack a clear political and moral philosophy has compelled Republicans to put one arm around traditionalist conservatives and the other arm around libertarians. Republican presidents, rich in libertarian friends, have lacked in understanding of the implications of placing libertarians on the court.

Fallacies from the Enlightenment

Libertarian philosophers think that only the individual has authentic existence, that government is a necessary evil and society is a pragmatic contrivance solely for the benefit of the individual. This error goes back to the Enlightenment era when John Locke and Jean Jacques Rousseau spun theories about a primeval individual man in a state of nature when the individual was all that existed. Locke described human society emerging from a state of nature as an artificial construct. Rousseau saw civilization as artificial, and nature as authentic. Locke saw the artificially-contrived society as a "social contract" that men make for pragmatic reasons. Rousseau thought that man is virtuous in a state of nature and is corrupted and held in bondage by the artificial and unnatural realm of civilization. According to Rousseau, man may free himself in two ways. He may return to nature, which is the Romantic solution. Or he may free himself through a "social contract" in which "the will of the people" is mystically manifested in a leader or a political movement. This is the solution of liberal "progressives."

Rousseau's social contract does not sound much like libertarian philosophy. However, the idea of both Rousseau and Locke that the only thing that once existed and had value was a free individual in a state of nature was the philosophical foundation which led to the philosophy of libertarianism. Locke's pragmatic social contract is more amenable to libertarians than Rousseau's social contract. Locke philosophically defended private property as the fruit of private labor and skillfully argued that no man can consider himself wronged because another man has property. The American founding fathers generally agreed with Locke on this point, as do modern conservatives and libertarians. The written Constitution was seen by some founders as the creation of a social contact on the model of Locke. However, they did not agree with Locke that the social contract is an artificial, pragmatic contrivance, like a business deal, for the private interests of individuals.

Consider these closing words from the Declaration of Independence:

"And for the support of this Declaration, with a firm reliance on divine Providence, we mutually pledge to one another our Lives, our Fortunes and our sacred Honor."

No men ever spoke this way about a business deal or a purely pragmatic business or political arrangement. A friend of mine in college was converted to libertarianism by reading Ayn Rand, Ludwig Von Mises, Von Hayek, and many other authors. I noticed that my friend's arguments were as abstract and hair-splitting as a Medieval scholastic philosopher. After one particularly arid formulation, I said, "No man ever died for that." He laughed, and saw my point. Rand succeeded as an author because she romanticized the heroic individual. But the fact remains that her philosophy is grounded in Locke's primeval individualism and his pragmatic and unromantic defense of property. The pragmatic defense of property is not to be despised, because freedom, civilization, and the creation of wealth depends upon it. However, man is far more than a pragmatic calculator of self-interest and a property accumulator.

As the founders realized, there is a work of divine providence in the creation of a new nation. It is a sacred thing to which gentlemen may be moved to pledge their lives, fortunes, and sacred honor. Something glorious is at stake that caused fine gentlemen to rise above their private selves and place their fortunes and worldly interests at risk. Many of them lost their fortunes and their lives during the ensuing whirlwind. They were heroes and not mere pragmatists or rational calculators.

Conservative vs. libertarian

Traditional conservatives believe that this world is created by God and that man is the special object of His care and guidance. An individual person has intrinsic value in his own right--and a family has intrinsic value in its own right, because the family unit is created by God and is designed to be an essential aspect of human nature. In a healthy family, both the individual and the family entity are respected. Other aspects of life that are essential to human nature are social relationships, community, private property, and business enterprise. Traditional culture, the arts, and literature are also vital to civilized man. Man is a spiritual being and his spirituality will influence how he sees the world and the values he attaches to different aspects of life.

Libertarians view things like family and community as only having value as the expression and extension of the individual. Conservatives agree about the value of the individual and his interests--but also see an intrinsic value that transcends the individual in God-ordained entities such as family, church, community, nation, and the commonweal. Individual freedom and private values are vital and precious, but are only one aspect of human life. Libertarian individualism seems to ennoble man, but it actually diminishes man through an individualist reductionism to something far less than what man was created to be.

A libertarian court

Libertarian ideas have steadily increased in influence since Ayn Rand wrote The Fountainhead in 1943. Libertarian concepts have infiltrated both conservative and liberal thought. Sometimes both the ACLU and Evangelical pastors slip onto Ayn Rand's turf without realizing it. The infectious power of her ideas are in their elemental simplicity. However, God's creation is anything but simple, and man--who is part angel and part devil, part spiritual and part worldly--is a mass of contradictions.

The evolution of the "right of privacy" through court decisions is partially the work of an alliance of liberal and libertarian judges. As products of the sexual revolution, the libertine liberals want no government restraint on promiscuous or perverted sex between consenting adults in private. They have persuaded themselves that unrestrained hedonism is sophisticated and enlightened. The libertarians who join hands with the libertine liberals want no government intrusion into private life of any kind, for this is the essence of their simple philosophy.

None of the court decisions that expand the right of privacy takes into account parental duties, the welfare of children, public health, or the government's interest in stable families. The privacy and freedom of the lone individual is the only issue taken seriously by the liberal-libertarian judges. Earlier judges thought the government had an interest in all these issues. The libertarian court has thrown everything overboard except the atomistic individual having sex in a state of nature.

The evolution of the right of privacy

The process started with Griswold vs. Connecticut (1965), which struck down state laws against condoms to protect the "right to marital privacy." The judges were searching high and low to find something in the Constitution on which to base a right of sexual privacy. Justice William O. Douglas claimed to find "penumbras" and "emanations" from rights in the Constitution that extended to a right to privacy.

In order to fully appreciate the innovative nature of the Griswold case, the founding fathers lived at a time in which privacy was not generally understood as a human right. In those days, only the aristocracy and the business class had anything remotely resembling privacy, and what they regarded as privacy we might regard as living in grand central station. George Washington was seldom alone any hour of the day, because relatives, servants, guests, friends, and visitors of many kinds were constantly coming and going. Most of our habits of privacy were developed in the nineteenth century. The rights enumerated in the Bill of Rights are public rights. It is extremely implausible that any of the founders ever imagined that "penumbras" or "emanations" from public rights would create privacy rights.

Eisenstadt vs. Baird (1972) was the next case to strike down a condom law, but this time the court extended privacy rights to unmarried adults who have consensual sex. In 1972, the sexual revolution was underway, and the culture war had begun. The question was, shall sex be about marriage and the family, or shall it be about the hedonistic individual? The court decided in favor of the hedonistic individual. These liberal and libertarian judges were not necessarily opposed to the family, but they could not conceive of the interests of the family being preferred before the lusts of the lone individual who is seeking sexual partners.

In 1973 came Roe vs. Wade and Doe vs. Bolton. The court decided that a pregnant woman has a right to an abortion because her "right to privacy" supercedes the baby's right to life. Even in an individualistic culture that highly values privacy, it is difficult to understand how a woman's privacy can be regarded by anyone as more important than the life of the baby. Interestingly, the feminists rarely argue for abortion rights on the grounds of privacy because it would sound too silly. Feminists argue for "freedom of choice," not for privacy. Only judges blinded by libertarian obfuscation will insist that a woman's privacy trump's a baby's life.

Consider the nonsense: If the baby is born, will the mother be publicly embarrassed, and does that matter legally? Does she want an abortion in order to hide in privacy from the public exposure of a birth? Can an unwed mother be so afraid of public embarrassment that she will abort her baby solely to save face? If such can be the case, why should the court encourage it? I have never heard a woman defend abortion on the grounds of privacy. If privacy is not the real reason for an abortion, what has privacy got to do with abortion law? Privacy does have a grisly relevance to the concealment of the horrors of an abortion mill. But what has law to do with the desire of abortionists to conceal their chamber of horrors?

Unlimited promiscuous sex without consequences was the ideal of the Woodstock generation. By 1973, promiscuous sex had become common at academia and among the liberal elite, the milieu that produces our judges. Sex without consequences means that the "consequences" of sex are aborted. However, nature teaches a mother to love the baby in her womb. The consequences of the abortion live on in her wounded heart and troubled conscience. Libertine liberalism and the libertarianism of absolute privacy do not work in the real world. Libertine law runs counter to the universal principle that actions have consequences. The universal moral law and the rational law of cause and effect decree that actions have consequences, and these natural laws undergird the legal principle that crime ought to be punished. However, libertine privacy law encourages the adolescent fantasy that actions do not have to have consequences.

The high court overturned a state's authority to prohibit homosexual sodomy in Lawrence vs. Texas (2003). An earlier decision protected promiscuous extramarital sex. Lawrence vs. Texas protected sexual perversion in private. It seemed a stretch to suppose that there is a right to privacy for secret perversions or that the state has a compelling interest to protect it.

Judge Kennedy stretched the right of privacy with his famous metaphysical statement: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and the mystery of life." This statement is an odd mixture of libertarianism, existentialism, and New Age mysticism. It is libertarian in its insistence that only the individual has ontological existence. It is existentialist in its assumption that the individual can find meaning by defining his existence.

Kennedy's metaphysical reference to the "mystery of life" and the "universe" sounds like New Age spirituality because he presumes an individual can discover these cosmic delights through an inward subjective quest. The New Age mixture of promiscuous sex and cosmic psychedelic spirituality accords with Kennedy's assumption that kinky sex can be part of an inner journey to discover the universe and the mystery of life. Hyper-individualism leads to many delusions. But what has all this to do with law?

In 2003, the state supreme court of Massachusetts declared a newly-minted right to same-sex marriage and cited Lawrence vs. Texas to support this right. However, marriage is a public institution and was never before supported in law as a right to privacy. The gays themselves never demanded same-sex marriage on these grounds. They are seeking public acceptance of their unions, not privacy. Privacy is something they already have.

Another innovation of the Massachusetts court is to redefine marriage. How can one have the "right" to something that did not exist by strict definition until the court arbitrarily redefined it? How can calling a gay union by a different name than marriage be the violation of a right? It is a different thing-in-itself, so why is it abusive to give it a separate name?

The Massachusetts decision presents no logical or legal grounds for declaring that homosexual marriage is a "right." The court arbitrarily created a new right by fiat. But our courts have been doing this ever since Justice Douglas found a right to privacy in the "penumbras" and "emanations" from other rights in 1965.

Leftward drift to intellectual shipwreck

We have traced the evolution of the "right of privacy" from 1965 to the incoherence and intellectual decadence of Lawrence vs. Texas and to arbitrary law by fiat of the Massachusetts Supreme Court. After a long drift to the left by Republican-nominated judges, their landing on a left of center sandbar was a moral and intellectual shipwreck. The damage they have wrought in the American system of law is incalculable. Much of the fault lies with the careless nominations of mediocrities to the court by Republican presidents. Nixon, Reagan, and the elder George Bush all said they wanted conservative judges, yet all appointed judges who drifted to the left.

President George W. Bush has a mediocrity in waiting, with no paper trail, by the name of Alberto Gonzales. Gonzales is Bush's good buddy from Texas, and Bush wants to appoint the first Hispanic to the court. He might reflect that the feckless O'Connor was appointed because she was a friend of the right people and because President Reagan wanted to appoint the first woman to the court. We have witnessed the first judicial shipwreck of a woman on the left of center sand bar. Now we might see the first shipwreck of a Hispanic judge on the same sandbar.

RenewAmerica analyst Fred Hutchison also writes a column for RenewAmerica.

© 2005 Fred Hutchison

The views expressed by RenewAmerica analysts are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.