Conservative Justices Do Not Need To Apologize For Making Socially-Conservative Rulings

I'm looking at you Justice Kavanaugh.


Every year, I assign the Case of the Speluncean Explorers by Lon Fuller. In this classic article, hikers, who are trapped in a cave, resort to cannibalism. They are later charged with murder for eating one of their partners. The defendants were convicted in the lower court. The five judges on the fictional Supreme Court of Newgarth sharply divided over how to resolve the case. I assign this article to teach students about the different types of judicial philosophies.

Chief Justice Truepenny wrote the first opinion. He would have followed the plain text of the murder statute, and upheld the conviction. Yet, he seemed uncomfortable with the result. After all, it was unjust to prosecute people for murder who were on the verge of starvation. They killed to eat! At the end of his opinion, Truepenny urged the Chief Executive to grant clemency to the defendants:

In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. . . . I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.

Justice Keen wrote a separate opinion. He too, would have upheld the conviction. In his view, the only question was whether the defendants' conduct was prohibited by statute. And it was. Yet, Justice Keen vigorously disagreed with the Chief Justices's clemency request:

I should like to begin by setting to one side two questions which are not before this Court. The first of these is whether executive clemency should be extended to these defendants if the conviction is affirmed. Under our system of government, that is a question for the Chief Executive, not for us. I therefore disapprove of that passage in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executive as to what he should do in this case and suggests that some impropriety will attach if these instructions are not heeded. This is a confusion of governmental functions—a confusion of which the judiciary should be the last to be guilty.

Alas, Justice Keen still conveyed wishes to the Chief Executive in his "private" capacity.

I wish to state that if I were the Chief Executive I would go farther in the direction of clemency than the pleas addressed to him propose. I would pardon these men altogether, since I believe that they have already suffered enough to pay for any offense they may have committed. I want it to be understood that this remark is made in my capacity as a private citizen who by the accident of his office happens to have acquired an intimate acquaintance with the facts of this case. In the discharge of my duties as judge, it is neither my function to address directions to the Chief Executive, nor to take into account what he may or may not do, in reaching my own decision, which must be controlled entirely by the law of this Commonwealth.

I always ask my students whether it is appropriate for judges to write, or even suggest, that a defendant in a case is worthy of executive clemency. Most students say the answer is no. The judiciary should follow the law, wherever it leads, and allow the other branches to do their jobs. Usually, students who are inclined to favor clemency also favor a reading of the statute that would reverse the convictions. In any event, few students will actually defend Justice Truepenny. This academic exercise is fun.

Yesterday, the exercise was not academic in Jones v. Mississippi. The very last paragraph of Justice Kavanaugh's majority opinion suggests that other branches of the Mississippi government should help the defendant, Brett Jones:

Finally, our holding today is far from the last word on whether Jones will receive relief from his sentence. Jones contends that he has maintained a good record in prison and that he is a different person now than he was when he killed his grandfather. He articulates several moral and policy arguments for why he should not be forced to spend the rest of his life in prison. Our decision allows Jones to present those arguments to the state officials authorized to act on them, such as the state legislature, state courts, or Governor. Those state avenues for sentencing relief remain open to Jones, and they will remain open to him for years to come.

Why? Why is this section necessary? The Supreme Court should focus on its own business, and let the other branches of state government do their jobs. Stay in your lane.

Indeed, the bulk of Part III of Justice Kavanaugh's opinion (p. 20-22) is utterly unnecessary. Why is it relevant how many people have benefited from Montgomery and Miller? Why should we care whether there is "agreement or disagreement with the sentence imposed against Jones"? That dispute is not before the Court. Why is it the Court's concern whether the states impose "additional sentencing limits in cases involving defendants under 18 convicted of murder." Of course there are 51 imperfect solutions. But it isn't the Court's job to speculate about hypothetical legislation.

In her dissent, Justice Sotomayor spikes this volley:

Having deprived Jones of his constitutional right, the Court gestures at a potential lifeline from other institutions, including the Mississippi Legislature or Governor. Ante, at 22. But "the remote possibility" of such action "does not mitigate the harshness of the sentence" that Jones now faces. Graham, 560 U. S., at 70. The Eighth Amendment guarantees juvenile offenders like Jones a basic constitutional protection against disproportionate punishments. The Court should not leave the vindication of such important legal rights to others, or to chance.

This sort of hand-wringing is, unfortunately, a common feature of Justice Kavanaugh's jurisprudence. In case after case where he reaches a socially-conservative rule, he apologizes to progressives.

I first noticed this sort of virtue signaling in the Maryland peace cross case. Part I of his concurrence was excellent. Part II was nauseating:

The Bladensburg Cross commemorates soldiers who gave their lives for America in World War I. I agree with the Court that the Bladensburg Cross is constitutional. At the same time, I have deep respect for the plaintiffs' sincere objections to seeing the cross on public land. I have great respect for the Jewish war veterans who in an amicus brief say that the cross on public land sends a message of exclusion. I recognize their sense of distress and alienation. Moreover, I fully understand the deeply religious nature of the cross. It would demean both believers and nonbelievers to say that the cross is not religious, or not all that religious. A case like this is difficult because it represents a clash of genuine and important interests.

We saw similar virtue signaling in the DACA case. Kavanaugh would have ruled against the Dreamers, but praised them.

For the last 20 years, the country has engaged in consequential policy, religious, and moral debates about the legal status of millions of young immigrants who, as children, were brought to the United States and have lived here ever since. Those young immigrants do not have legal status in the United States under current statutory law. They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants.

And ditto for Bostock. He rejected Justice Gorsuch's reading of Title VII, but praised LGBT people.

Notwithstanding my concern about the Court's transgression of the Constitution's separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today's result. Under the Constitution's separation of powers, however, I believe that it was Congress's role, not this Court's, to amend Title VII. I therefore must respectfully dissent from the Court's judgment. 

In the past, Justice Kavanaugh checked his privilege in separate writings. But in Jones, this abjuration seeped into the majority opinion. I'm disappointed Justices Alito, Gorsuch, and Barrett joined the drecky Part III. Justice Scalia never would have joined it. Justice Thomas, I think correctly, argues that the majority misreads precedent. But I doubt Justice Thomas could have joined this pablum.

Conservative justices do not need to apologize for reaching socially-conservative results. Stop worrying about what other branches will do. The Governor of Mississippi can do his job without being nudged by the Supreme Court. Stop apologizing for the people you are ruling against. These "thoughts and prayers" will be cold comfort as Brett Jones spends the rest of his life in prison. Stop praising the people who are harmed by your ruling. The Dreamers facing deportation could care less about your view of State Farm.  This pseudo-empathy serves no purpose. Make your decision and own it.

One final note about virtue-signaling in Jones. Justice Thomas wrote a fiery footnote 2. He highlighted a linguistic inconsistency. When progressive Justices are writing about the Eighth Amendment, minors are called "children." But when writing about abortion, minors are "women." What could explain this disparate treatment?

The Court's language in this line of precedents is notable. When addressing juvenile murderers, this Court has stated that " 'children are different' " and that courts must consider "a child's lesser culpability." Montgomery, 577 U. S., at 207–208 (emphasis added). And yet, when assessing the Court-created right of an individual of the same age to seek an abortion, Members of this Court take pains to emphasize a "young woman's" right to choose. See, e.g., Lambert v. Wicklund, 520 U. S. 292, 301 (1997) (Stevens, J., joined by Ginsburg and BREYER, JJ., concurring in judgment) (emphasis added); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 899 (1992) (joint opinion of O'Connor, Kennedy, and Souter, JJ.); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 532 (1990) (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting). It is curious how the Court's view of the maturity of minors ebbs and flows depending on the issue.

Justice Thomas had a similar linguistic tiff with Justice Ginsburg in 2019 concerning the word "mother" in abortion cases.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. Sounds interesting, but I just ate.

    1. This situation sounded familiar…I double checked and of course there’s the famous cannibalism-at-sea case of R. v. Dudley and Stephens, 14 Q.B.D. 273 (1884).

      The case also inspired a book, Cannibalism and the Common Law.

      It’s a case you can really sink your teeth into. It raises several meaty points of law. The judges delivered their well-digested opinions.

  2. “Since the person the defendants ate was an old, White, conservative, male, we should not only grant them clemency, but should also praise them for improving the voting pool “.

  3. I would take it you would also hold that it would equally be a removable offense for a Governor to defer a clemency or pardon decision to the judicial branch?

    There are a number of examples of Governors rejecting clemency or pardon with the words, “While I think this individual is deserving of a pardon, I must respect the fact that he was convicted by our legal system.”

    If, as you hold, the judiciary oversteps its role when it recommends pardon or clemency, then it seems you must equally hold that it is a removable offense for a Governor effectively abdicates this power to the judiciary.

    1. How exactly do you jump to that conclusion? Nowhere did the article argue that judges that overstep their role should be removed, so how does that mean he should support the removal of a governor who abdicates the pardon power?

      1. Not doing a job you should be doing (when this can result in unjust punishment or even death) seems more serious than giving advice beyond the scope of your job description which can be ignored, and if not ignored could at most unjustly reduce punishment.

  4. There is nothing wrong with judges using the knowledge they gain through the course of their jobs alerting officials in other branches of various issues. That is called good communication.

    The legislature and the executive are not always aware of how the laws they make play out in the real world and with respect to particular individuals. But judges are inevitably made more aware of this. For this reason, it is appropriate for judges to communicate the knowledge they gain to officials of other branches.

    The idea that judges should be silenced so that they do not even communicate on an issue where they have a comparative advantage is a formula for a more dysfunctional government and serves no good purpose.

    As for Blackman’s statement that Kavanaugh is “apologizing” to liberals, this is just an example of Blackman unduly politicizing the judiciary. There is nothing political about pointing out a potential unintended consequence of the law. Blackman’s argument that such discussion is not “necessary” is also irrelevant. Perhaps Blackman has never heard of dicta, but it exists in nearly every judicial decision. The question isn’t whether the statement is necessary, the question is whether it is potentially helpful to other branches of government coming to an understanding of the concrete consequences of abstract laws.

    1. Yeah, judges have a certain amount of expertise about the facts of the cases that are before them. Saying “hey, based on what we’ve seen here, this is an unjust result (although legally required), and the political branches should do something about it” is entirely in keeping with the judicial function.

      1. If the court upholds the law in question as Constitutional, how can they then proceed to hand down a knowingly unjust result?

        Genuinely curious on this one. If they think the result is unjust, then they should attack the law that produced the injustice, call out its failings, and send it back to the legislature to fix. And until that time, the Constitution rules supreme.

        If a particular justice, out of their own private beliefs, thinks that something is askew, they should refrain from putting that in official court recordings. Their personal views, especially when they contradict the law, are not the words of the court and should stay that way. If they, in their private citizen role, wish to opine publicly to other branches or even directly through personal relationships they have with office holders of other branches then that would be fine.

        They just should not use the official voice of the court or as that of a judge to uphold private views that may be in conflict what they just admitted is right via their ruling as such (assuming they were in the majority).

        If they are in the minority… then give the argument as to why the majority ruling is wrong on the facts/law, not personal ethics.

        At least that’s my gut… any reason this is bad?

        1. If the court upholds the law in question as Constitutional, how can they then proceed to hand down a knowingly unjust result?

          Because not all unconstitutional things are unjust, and not all unjust things are unconstitutional.

          Examples of the former: A president younger than 35, a senator from Washington DC, a ban on owning any kind of fire arm, criminal trials without a jury.

          Examples of the latter: The death penalty, indentured servitude as a punishment for a crime, making the victims of defamation repeat the defamation in open court as a condition of seeking damages, near-perpetual copyrights.

          Of course, different people may have different examples, but hope the general idea isn’t too difficult to grasp.

        2. If the court upholds the law in question as Constitutional, how can they then proceed to hand down a knowingly unjust result?

          Because judges are tasked with doing law, not justice.

          Their personal views, especially when they contradict the law,

          Their views don’t contradict the law. The law (constitution) says what the government is allowed to do, not what it should do.

  5. I am annoyed when judges feel the need to say how awful a defendant’s words are before reluctantly holding them to be constitionally protected. I don’t mind a short sentence like “The plaintiff’s arguments are better presented to Congress than this court.” That’s a way of referring to the separation of powers doctrine.

  6. I don’t have any problem at all with a judge saying “the law says X, so X it is, but I think that’s a miscarriage of justice and the other branches of the government should do something about it”.

    That seems like exactly the right way to handle that situation, rather than having the judicial branch start rewriting laws based on its own opinions.

  7. Kavanaugh is a Bush loyalist and George Wu Bush is on record as despising the people that currently make up the Republican Party.

  8. It speaks volumes that prof. Blackman can’t even conceive of the possibility that a Supreme Court Justice might reach a result on the law that they don’t favour as a policy matter.

    1. Yep.

  9. You need to understand how trigger shy Kavanough likely is — even before that confirmation hearing, he had to survive three earlier years in limbo before getting onto the DC Circuit and then had to be a good boy and be nice to the leftists — he’s lived his entire life in the DC area.

    1. Conservative victimhood truly knows few bounds. It wasn’t like he was unemployed during those three years, iirc he was working a nice job at the White House under a GOP administration.

      1. Keep pimping the bullshit idea of “conservative victimhood” and gas light us some more.

        1. Read Ed’s comment, it’s pure conservative victimhood based on basically Kavanaugh fan fiction.

        2. I don’t have to pimp that when you and your comrades establish it plainly in posts like Eds.

      2. Given Kavanaugh’s conduct running the Vince Foster “investigation” was loathsome even by D.C. standards, it’s a hard sell seeing him as victim. Brett Kavanaugh got where he is by the most cynical road possible. Our own Josh Blackman could take a lesson from him on doing what must be done to get ahead.

      3. If conservatives are as privileged as you claim lets see you start a conservative Facebook/Youtube/Twitch channel or career as a faux conservative professor/activist and then after a day or two unmask yourself and use the riches you’ve reaped rolling in all the preferential treatment you constantly imply conservatives get to fund your favorite prog candidate or initiative.

        1. Lol, dude, you’re soaking in it (Blackman, as one example, has an outsized place in legal academe precisely in large part because he’s a conservative who publishes a lot on the conservative internet, if he were a liberal you’d never have heard of him).

  10. I think all good advocates and jurists do this type of thing, you make the best case for your position you can and short circuit the opposing argument. They’re going to make the charge that you’ve left children with no recourse, you counter there’s a procedure available for relief. The left leaning judges do a version of this quite a bit as well.

  11. He’s the most likely to get the James Hodgkinson treatment in our new post-rule of law society so really he’s just trying to keep himself alive.

  12. Was Justice Thomas virtue signaling in Lawrence when he wrote

    The law before the Court today “is … uncommonly silly.” […] If I were a member of the Texas Legislature, I would vote to repeal it.

    1. That doesn’t sound like an apology for a decision he wrote. In fact, it’s the opposite.

  13. On pardons, I take it as given that judges should get in touch with the governor if that judge’s knowledge of the case indicates it’s a good case for pardon. The only issue is how to get in touch – a passage in an opinion, or a letter to the governor or whatever.

    A citizen (even a judge) who happens to know there’s a strong case for pardon should say so.

  14. As an aside, the case of speluncean explorers takes place in the year 3149 AD, so why not assume the existence of Vulcan-like “robot judges”? I do just that here:

  15. I disagree with Professor Blackman’s assertion that the Justices in question are apologizing for their decisions. Judges, particularly in highly publicized case, aren’t simply writing for law professors; they’re writing for the public. The public has an imperfect understanding of the role of the judiciary: Many people think that there are liberal and conservative judges, who decide cases based on their ideological preferences. This results from commentary in both the left-wing and the right-wing press, as well as statements by politicians. In truth, the best judges are those who are able to set aside their ideological preferences, and to decide cases on their merits. As Chief Justice Roberts said, there should be no “Obama judges” or “Trump judges.” The passages to which Prof. Blackman objects represent attempts to show that the judge in question is deciding the case on the merits, not on ideology.

    1. “The public has an imperfect understanding of the role of the judiciary: Many people think that there are liberal and conservative judges, who decide cases based on their ideological preferences.”

      How is this an imperfect understanding?

      1. Your point is well taken: Sometimes ideological preferences do have an effect. But they shouldn’t. Most Justices recognize that they shouldn’t, and try to set aside their preferences when they’re deciding cases. Some of them are better at it than others. But the observations by Justice Kavanaugh which Blackman calls “apologies” are not apologies: They’re attempts by Justice Kavanaugh to explain to laypersons reading his opinion that it is based on law, not on ideological preferences that might produce antipathy to immigrants or to members of the LGBTQ community. There’s absolutely nothing wrong with such explanations, and judges who make them should be commended, not criticized. That is the point I was trying to make, albeit not as clearly as it should have been.

        1. Amazing, I got a polite and thoughtful response on Volokh. If I’d known you’d do *that,* I’d have put more thought into my comment.

          I agree that Blackman is over the top, especially with the pardon stuff. The one part where Blackman seems on target is where he shows Kavanaugh writing elaborate love-letters to the people he’s voting against. He could just say, “it is not a question of whether I agree with this substantive result, I believe that the law is” blah blah, without patting the losing party on the back for its nobility and great efforts.

          1. I mean winning party, just losing K’s vote.

    2. I rarely comment here any more, but this is what I wanted to say, with a slightly different spin. News media reports of cases discuss “winners” from the case and very often imply that the judges who found for the “winners” are enthusiastic backers of the win itself. It does no harm, I think, to try and separate “who won” from “why.” I’m not certain that Kavanagh’s dicta here will actually get mentioned, but it forms a direct method of rebuttal in public discussion.

    3. It’s quite appropriate your screen name is “dreamer”, given that you seem to think your idealistic nonsense is actually reality.

  16. The only nit I would pick is that it’s not even a socially conservative opinion, it’s a judicially modest one. The voters are perfectly entitled to enact a law that juvenile murderers are exempt from punishment, or punishment is limited to x term of years, or whatever. The Court simply held that the Constitution doesn’t require this result, which it doesn’t, because it’s completely silent on this topic. Ruling that the Constitution silently requires a certain treatment for murderers based on when their birthday happens to be is as absurd as saying the Constitution requires a certain treatment if they commit a murder while wearing a red shirt. The voters can do this if they feel like it, but obviously the Constitution doesn’t grant special perks to murderers of certain birthdays or certain shirts.

    1. As we approach a Weimar Republic style judicial system, the system won’t give you privileges based on the color of your skin, but instead based on the color of your shirt (brown being the preferred color).

    2. The constitution requires that punishment inflicted by the state not be cruel or unusual, regardless of what voters wish to enact. An opinion on what type of punishment qualifies or doesn’t qualify could be seen as socially conservative, I suppose.

  17. I don’t think it’s inappropriate for a limited degree of “virtue signalling” as it puts legislatures on notice that even though a law was upheld by the court, knowing all the facts of a particular case made the court uncomfortable having to apply the law to the case.

    Going into much detail on that seems unnecessary and suggesting specific actions should be taken by any other branch of the government seems over the top.

    As well, the practice gives lower court judges some refuge in politically motivated confirmation hearings for seats on the higher courts.

    For example, Gorsuch’s simple statement in his dissent in the “Frozen Trucker Case”

    It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.

    hints that he may not actually, morally, like the outcome he felt compelled to call for.

  18. Can someone who agrees with Professor Blackman (including Professor Blackman) give actual reasons why it is wrong for judges to give advice to the other branches? I’v heard only reasons in favor of such advice (and the sound pretty good).

    1. So the POTUS should tell SCOTUS how to rule? The Legislature should tell SCOTUS which cases to take up and which to pass on?

      As private citizens, judges acting not as judges are free to espouse their views. That is totally fine, even with the information they learned from acting as a judge.

      But when speaking AS a member of the court, they should stay out of other branches’ business. It simply is not their place or job. They are not advocates for certain laws or certain executive positions… they are judges and no more. That’s the whole point of the division of government, to keep realms separate so as to not allow any one branch to gain undue influence or power over too much of the act of governing.

      1. So the POTUS should tell SCOTUS how to rule?

        It may shock you to learn that POTUS actually employs a whole team of people who do exactly that.

    2. I’m also interested in this. It’s one of the weirdest arguments that Blackman has made: That it’s improper for one of the 3 branches to give advice to the other two branches. Too many counter-examples to list. But, here’s a few, off the top of my head.
      1. A senator/representative says, “We in Congress just passed tax cuts for the filthy rich. The president should sign this excellent bill.”
      (Or, if you prefer, “Congress has just passed tax cuts for the filthy rich. The president should veto this terrible bill.”)
      2. The president says, “Congress is about to discuss and vote on tax cuts. I will not vote for any bill that includes/excludes tax cuts for X.”
      3. [Then-]President Obama says, “The ACA is now at the Supreme Court. It should vote to uphold this important law.” (or, Republican Congressperson X says, “The Sup. Ct should overturn Obamacare in its entirety. It’s an unconstitutional law.”

      I am guessing that there have been about a thousand of the above each year. I cannot recall Blackman criticizing these before. (I absolutely will grant you that there are times when it seems quite unseemly for a politician to chime in about a particular case. But I cannot remember being bothered by dicta in a case where a judge/the court is saying, “We/I think this is a bad result. But a change needs to come from a change in the actual law(s), and not from judicial activism. After all; what is dicta, if not a comment beyond the 4 corners of a particular case, about what the law could or should be?)

  19. Argh… One closing tag missing… Where is preview!

  20. Why is this section necessary?

    I don’t think that’s the right question. It isn’t strictly necessary for SCOTUS to write about its decisions at all. It’s well within its power to simply state the disposition of the case.

    There are, of course, generally good reasons for SCOTUS to write about its decisions. So I would ask whether Kavanaugh had good reasons to write what he wrote. And I would answer that educating the public and defending the legitimacy of the court are good, plausible reasons for his dicta.

  21. Cannibalism as a result of disasters at sea was not all that unusual in the days of sail. I recommend Nathaniel Philbrick’s “In The Heart Of The Sea: The Tragedy Of The Whaleship Essex”. The disaster it describes inspired “Moby Dick”, but the relevant part of the story for present purposes is what happened to the survivors of the sinking. In some of the instances that Philbrick describes, the starving sailors all agreed to participate in a lottery to decide who would be sacrificed. In another case, one sailor was clearly dying. I know that such refinements of the issue would spoil the discussion here — but they are the kinds of details that a real life lawyer should be looking for.

    I disagree with those who criticize a Justice or Judge for recognizing the moral value of the arguments of the losers in a case. Judges and Justices do more than decide the particular cases before them. Their opinions may establish legal, political, and (yes) moral bench marks. By acknowledging that the “loser” in a particular case had a legitimate, but incorrect, position, a Justice or Judge may legitimately try to minimize the bench marks it establishes. The Supreme Court decisions that didn’t do that – Dred Scott, abortion, Gay rights – often cause conflict for decades or generations.

    1. What is the legitimate or moral argument that defends gay-bashing bigots?

      Is there a legitimate or moral argument available to race-targeting vote suppressors?

      Thank you.

  22. Its The Good ConservativeTM phenomenon. Now good conservatives officially dont exist in prog/MSM ideology but they sort of exist whenever they want to attack a particularly successful conservative. The basic role of the Good ConservativeTM is to serve as a punching bag and boogeyman.

    The Good ConservativeTM doesn’t really believe or at most believes in an extremely watered down basically impotent version of conservative principles and acknowledges the prog worldview as the ultimate reality. The sign of the Good ConservativeTm is that he plays by the ground rules set by Leftists. Like for example instead of turning off the illegal immigration spigot, turn it lower by 0.00000000000001% for 1 second but only because its absolutely economically necessary and oh what a racist terrible sacrifice it is, please please please forgive me. Or instead of forbidding parents from chemically castrating their supposed ‘transgender’ five year old, make it so the child has to be five years and a day old and oh we’re so sorry we’re so transphobic and we wish and we will fervently work toward a world where transgender newborns can be chemically castrated.

    Not that this ‘pragmatism’ ever saves the Good ConservativeTM from the pitchforks of the MSM and Twitterati who label them as worse than 1000000000000000000000000000000x Hitlers for turning the illegal spigot down 0.0000001% or making it so that only 5 year olds and a day can be chemically castrated instead of 5 year olds, as long as actual conservatives aren’t around. (see Kavanaugh/Roberts who despite everything he’s done to be The Good ConservativeTM is still a caricature out of the Handmaids Tale if you go by the rhetoric of activists). The Good ConservativeTM takes this in stride and lives for the rare days they can bask in the adulation of Twitter and the MSM when an actual conservative or moderate comes along and is unfavorably compared to them.

    Bush II in many respects tried to be a Good ConservativeTM as do many/most national Republicans. What really enrages people about Trump is that he didn’t play these games. Its funny seeing Bush, who was basically Hitler back in the day if your memory isn’t swiss cheese like most people, elevated to pseudoGandhi status. It will take some time for the long term effects of Trump’s term to be clear but years after Bush’s less than impressive reign its really hard to see any gain from all this past and present kowtowing he likes to do to leftists. I’d really like someone from either side to point it out to me if they can.

    So yeah, the Good ConservativeTM approach clearly does not seem to work unless you are not conservative at all. But it is highly favored among academic/institutional ‘conservatives/libertarians’ such as those at Reason and people like the Bush dynasty who are comfortable in their ordained roles as highly paid pets/punching bags of leftists. And they are more fearful of actual conservatives/rightwingers who might displace them than of anything from the side they supposedly are opposing. See the past and 2016 election season. Playing by the groundrules of progs is also a habit of some ‘mainstream’ ‘conservative/republicans’ who are afraid of the kindergarten witch/heretic labels leftists like to apply to all their opponents.

  23. Looks like Josh doesn’t read many 19th century judicial opinions. Lot “virtue signaling” going on back then.

  24. “In case after case where he reaches a socially-conservative rule”

    Legal rulings can be socially conservative? Does a ruling of such sort involve the application of something other than the law?

    How exactly is the ruling in this case socially conservative? Is this particular ruling the epitome of social conservatism applied via law?

    1. Rulings can be perceived as having results aligned with certain ideologies. Not sure why you are pretending to be surprised when the entire leftwing of the federal judicary’s philosophy is to make rulings based on their ideology.

      1. And the rightwing of the federal judiciary is as pure as the driven snow. Right.

  25. I think the reason you find conservatives apologizing for their decisions is that in general conservative decisions are more likely to hurt people than do liberal ones. Not always but more often than not.

    Of course, whether someone is hurt is usually not a legitimate basis for a decision unless you’re in chancellery balancing equities. I’m not one who thinks conservatives are always wrong on the law. But let’s at least acknowledge that conservative jurisprudence causes more human suffering and that might be a reason why you see conservatives apologizing.

  26. Has it ever occurred to Josh that the people who actually have to make these decisions, instead of simply blogging about them, might feel the moral weight of their choices? And that they might want a slightly clearer conscience if they reach a result that they believe is correct but also unjust or immoral.

  27. Just as I don’t have a problem with a judge occassionally suggesting that the legislature change a law, I don’t have a problem with a judge occasdionally suggesting executive clemency.

    Situations where the law is clear but one wishes it were otherwise come up from time to time, regardless of ones politics or philosophy. Judges are human. In my view, the outlet of occassionally using their position to suggest that the responsible branch take an action helps judges live with the limitations of the powers of their own branch and the conflicts between those limitations and what they might wish they could do. Being able to suggest changing the law or granting clemency makes it easier for judges to rule as the law requires.

    Judges have expertise others do not. Sometimes, they might be worth listening to.

  28. Perhaps the paradigmatic example of a case where a judge finds a law as written constitutional but suggests that the legislature consider changing it is Perkins v. North Carolina, 234 F.Supp 233 (1964), where Judge Craven upheld the constitutionality of North Carolina’s Crime Against Nature statute and Perkins’ 20-30 year for consensual sodomy, as well as a disparity in sentencing. His accomplice, who pleaded guilty, got only 5-7 years. He noted that under Supreme Court precedent even the maximum 60 years would be constitutional, and the law had been construed by North Carolina Supreme Court peecedent to cover Perkins’ conduct and hence was not unconstitutionally vague..

    He then added a paragraph listing all crimes with a lesser sentence, beginning with 2nd degree murder, asking why consensual sodomy is a greater threat to society than these crimes, and suggesting that the legislature consider changing the law.

    The next year, the levislature quietly lowered the maximum to 10 years and removed the 5-year minimum.

  29. It’s also worth noting that there is a long history of judges stating, in upholding the constitutionality of a controversial law, saying that they are not passing judgment on its “wisdom or policy” or interfering with legislatures who may wish to change it.

    The Supreme Court did this, somewhat softly, in upholding the Civil Rights Act of 1965. It did it more explicitly in Bowers v. Haedwick when upholding Georgia’s sodomy law. Judges liberal and conservative alike have done it.

    It is important for any judge who wants to at least appear to be a neutral arbiter calling the law and the Constitution as they see it without appearing to put a thumb on the scale for either side to say things like this from time to time. Doing so communicatex to the public an important message of judicial humility, that when the court finds a law constitutional it is not endorsing it or saying that opponents of the law are wrong.

    Only a naked partisan ideologue, who openly expects judges to use the power of their offices to advance the cause and implement the policies of those who appointed them any way they can, would regard a statement like this as being some sort of “apology” to the other side. The fact that Professor Blackman takes this view says a great deal about him.

    As we all know, President Trump, knowing that the good of the country required him to continue to be President, saw penumbras and emenations in the ballot process which clearly showed that he should be elected and that the election of someone as abhorrent to everything the country really stands forwas in fact unlawful. In doing so, he followed a long tradition of Supreme Court Justices with confidence in the their sure knowledge of what the country really stands for similar to Mr. Trump’s, who similarly found permutations and emanations in the Constitution to ensure that it and what the country really stands for remained in alignment.

    Ego inflation is a big problem, especially in branches of government who officials think they don’t have to stand for re-election (or at least, think they don’t have to accept tesults). In my view, just as the President is required to accept the results of the election as they are, the Judiciary has to accept the results of the Constitution as they are. The Constitution gives the judiciary a limit amount of discretion, but the emphasis is on the word limited. Judicial ego inflation, conflation of ones own personal beliefs with what the constitution says and a willingness to set the written constitution aside to reach that goal, is as big a danger as Presidential ego inflation.

    I therefore think it was entirely salutary for Justice Kavanaugh’s opinion to express judicial humility by saying that although the constitution permits this sentence, that doesn’t provide any assurance that it is the right sentence as a matter if policy, either in general or in this particular case. It was a good and appropriate thing for him to do. I hope he keeps saying things like that.

    The events of the last few years and the last election should impress on everyone the importance of having a little humility and avoiding the temptation to believe too much in ones importance or that oneself, alone, has all the answers. It’s good to express this humility from time to time.

    I think a conservative, humble, legitimacy-focused interpretation of the constitution requires upholding laws that one personally dislikes, not just from time to time but often. I’ve argued for the constitutionality of laws I personally dislike many times in my comments on this blog. In a roughly evenly divided country, there will always be some liberal laws and some conservative laws, and in my view both are usually constitutional.

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