Why Democratic Justices are More United than Republicans

It has been reported that this term is shaping up to be one of the most liberal at the Supreme Court since 1969. Another report by Eric Posner shows that the justices appointed by Republican Presidents are agreeing less among themselves, while the justices appointed by Democratic Presidents remain a united bloc.

We should be cautious about reading this information as a trend. The case mix changes from year to year and thus there can be expected to be overall ideological variation from year to year depending on that mix and the justices’ idiosyncratic views. But there is no doubt that the country is moving left at least on social issues and the oldest adage about the Court’s decision-making is that it follows the election returns. Certainly, the expected creation of a right to same-sex marriage would be unimaginable without the rapid and dramatic shift in public opinion on the issue.

The more interesting question is why Republican justices tend to fracture while the Democrats stay united. The first reason is that Supreme Court opinions implicate not only ideology, but jurisprudential methodology and Republicans are more divided on jurisprudence.

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The Technological Threat to Fusionism

In most democratic nations around the world, coalitions of the mainstream right include both classical liberals and conservatives. Depending on the voting rules of the nation, that coalition takes place informally within a single party, as in the United States, or formally across parties, as in the proportional parliamentary systems of Western Europe. These two fundamentally different political sensibilities are drawn together by a common enemy—the social engineering of the left.  Both classical liberals and conservatives value personal responsibility, which is often undermined by the grand plans of big government.  Social engineering also requires a scope of collective authority that trenches on the liberty valued by classical liberals and unravels the social traditions valued by conservatives. The  happy result is fusionism—the united front of both classical liberals and conservatives against socialists and social democrats.

Technological acceleration could threaten fusionism. First, it may speed up the rate of social change, making traditions hard to maintain through civil society. Conservatives may be tempted to think that the state can provide a bulwark against social transformation. Fast technological change has created tensions between conservatives and classical liberals before (witness Tories versus Manchester liberals in nineteenth century England), but the rate of change today seems to me faster than ever and the possibilities for division between classical liberals and conservatives correspondingly  greater.

More importantly, technology is beginning to permit personal re-engineering, pitting values of autonomy against values of a more tradition-bound (and frequently religiously based) view of what it means to be human.

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Drafting Libertarians

Thanks to Mike for his follow-up to my questions. Though enlightened, I am somewhat disappointed; I thought he was making a more radical argument, given his examples such as extending libertarian principles to foreigners wishing to enter this country (see the vigorous discussion on his original piece on immigration). I tried to base my observations solely on Mike’s own discussion, and not on opinions drawn from the vast libertarian conspiracy. I too affirm a “very moderate” libertarianism in one country, involving an “indirect utilitarianism.”

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Constitutional Conservatism


This Liberty Law Talk is with Hoover Institution fellow Peter Berkowitz on his new book Constitutional Conservatism: Liberty, Self-Government, and Political Moderation. The book deepens Frank Meyer's conservative fusionist project by adding an Aristotelian and Burkean challenge to both libertarians and conservatives in America. Both groups must lead with political moderation, Berkowitz counsels. One example of such moderation was Ronald Reagan, Berkowitz observes, and this explains much of his success. But this sounds odd, surely Reagan stood for something. Berkowitz's understanding of moderation, however, is not that of the mealy-mouthed variety, but is found in the application of principles to the…

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Peter Viereck: Traditionalist Libertarian?

The Post-World War II American intellectual conservative movement was a philosophically jerrybuilt political alliance. Its ideas were greatly influenced by William F. Buckley’s National Review, which started in 1955. The magazine’s chief ideologue was senior editor Frank S. Meyer. He propagated a rather paradoxical notion of conservatism, which he summarized as the individualism of John Stuart Mill without its moral utilitarianism. To become conservative laissez-faire liberalism only needed to be leavened with what Meyer called “an objective moral order.” This ideological stance, called “fusionism,” was typical of National Review in that it fudged, or simply ignored, issues of far-reaching philosophical importance.

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