David Bernstein has an interesting post — interesting in itself, and raising interesting questions — noting and generally lamenting the fact that the dominant conservative view of the role of the judiciary “simply adopted and advocated views regarding the role of the judiciary previously championed by the likes of Frankfurter and Holmes,” i.e., dead liberals.
The oddity, however, is that Holmes was the favorite Justice of early 20th century Progressives, and was despised by contemporary conservatives. And Frankfurter, of course, was a leading Progressive legal activist and academic, and never abandoned his basic Progressive (i.e., statist) presumptions as a Justice.
During their own time, as Bernstein reminds us, Holmes was revered by progressives.
Progressive historian Charles Beard effused that Holmes’ [Lochner dissent] was “a flash of lightning [in] the dark heavens of juridicial logic.” Progressive jurist Benjamin Cardozo asserted that Justice Holmes’s dissent was “the beginning of an era…. [I]t has become the voice of a new dispensation, which has written itself into law.” In 1915, the Progressive New Republic praised Holmes’ “classic” Lochner dissent.
Revered by liberals, Holmes was reviled by his conservative contemporaries. “It wasn’t until after World War II,” Bernstein points out,
that the few remaining influential conservative commentators on constitutional law abandoned traditional conservative limited-government and natural rights constitutionalism, and instead focused on containing the Warren Court’s emerging judicial liberalism. In the process of doing so, they adopted the Progressives’ majoritarian critique of the Supreme Court’s pre-New Deal liberty of contract jurisprudence, joining the remaining old-school Progressives like Learned Hand, Herbert Wechsler, and Frankfurter.
“In short,” Bernstein concludes,
until folks like Richard Epstein and Randy Barnett upset the apple cart, modern constitutional debate, especially with regard to the Fourteenth Amendment, was a battle between New Progressive ideology advocated by modern liberals, and Old Progressive ideology advocated by modern conservatives.
There is nothing actually conservative, however, about Old Progressive ideology, and it was only adopted by conservatives as an attempt to stop or at least slow the march of New Progressive ideology. Now that conservatives are no longer simply playing defense, there is no good reason, politically or ideologically, for them to continue to defend an ideology invented and promoted by their historical Progressive enemies: Roscoe Pound [in his early years], Holmes, Frankfurter, Brandeis, Corwin, etc.
“A telling example” of this unfortunate conservative adoption of the earlier liberal devotion to judicial deference of legislative majorities pointed to by Bernstein “a short 1952 memo written by a young conservative Supreme Court clerk (and future Chief Justice of the United States), William Rehnquist, to Justice Robert Jackson” arguing that the Court should defer both to history and legislative majorities, i.e., that “Plessy v. Ferguson was right and should be re-affirmed.”
We needn’t enter into the debate about that memo (was Rehnquist expressing his own opinion or Justice Jackson’s?) or about Plessy here, although I would be remiss in my blogly duties if I did not remind readers that I have argued many times, and then many more times, that it is today’s liberals, not conservatives, who echo Plessy and stand on its shoulders. Indeed, since this post is concerned with David Bernstein’s criticism of conservative jurists for adopting the jurisprudence of earlier liberals, I will indulge myself by quoting a twofer (a post that quotes an earlier post:
I have argued here on a number of occasions that one of the oddest, saddest things about contemporary liberalism is the degree to which it stands on the shoulders, and repeats the arguments, of dead racists. And the best example, as I noted here, is that
anyone who defends racial preferences must reject Justice John Marshall Harlan’s stirring comment in Plessy that “our Constitution is colorblind” and agree with the majority’s holding in that case the 14th Amendment does not require colorblindness.
At least for this post, however, I will leave the debate over the proper role of the judiciary to the lawyers, but with one caveat: please say it ain’t so that what is still the reigning conservative view of the judiciary’s role was “only adopted” as a reactive antidote to liberal view. I would be surprised and disappointed if at least some of the judicial philosophy of at least some conservative jurists and scholars — among them Chief Justice Roberts; Justices Scalia, Thomas, and Scalia; 4th Circuit Judge J. Harvie Wilkinson, etc. — didn’t have some, well, philosophical justifications for their judicial philosophy beyond being a foil to liberals.
Indeed, I can’t think of a much worse reason for rejecting a judicial (or any) philosophy than that it was “invented and promoted by [one’s] historical Progressive enemies.” Should conservatives abandon our reverence for the “without regard” principle of colorblind racial neutrality because it originated with abolitionist radicals and was ardently supported for over a century by liberals?
I certainly hope not. Liberals, especially dead ones, often had good ideas, and those ideas should not be rejected simply because of their parentage.
ADDENDUM
I believe it is implicit in what I have said above, but perhaps I should make explicit a corollary: just as an idea should not be rejected because it was born of liberals, so conservatives should not leap to the defense of an idea simply because it was advocated by a conservative. I believe, to his credit, that was part of Bernstein’s point in introducing the young Rehnquist’s unfortunate 1952 memo. We do not have to agree with Cass Sunstein that Rehnquist was “the incarnation of Roger Taney” or with Alan Dershowitz that “Chief Justice William Rehnquist set back liberty, equality, and human rights perhaps more than any American judge of this generation” in order to disagree with Rehnquist’s 1952 memo arguing that Plessy was rightly decided.
