Let's Face It, Conservative Supreme Court Justices Are a Bunch of Hypocrites

In 1787, writing in the Federalist Papers in support of state ratification of the Constitution, Alexander Hamilton argued that the proposed Supreme Court "will always be the least dangerous to the political rights of the constitution." As for judicial activism, "contraventions of the will of the legislature may now and then happen; but they can never be as extensive as to affect the order of the political system."

In 2010, as the Supreme Court convenes for a new term, liberals, conservatives and independents all agree that Hamilton's prophecy was wildly off the mark. Conservatives blame liberals for his errancy. They argue that judicial restraint would be the norm but for the hijacking of the Court liberals' "judicial activists."

Liberals, as usual, react defensively. During the Ellen Kagan confirmation hearings, President Obama, a former professor of constitutional law, once again confirmed Robert Frost's characterization of a liberal as someone so broadminded he won't take his own side in an argument, when Obama described an activist judge as an anomaly. "(S)omebody who ignored the will of Congress, ignored democratic process and tried to impose judicial solutions on problems instead of letting the process work itself through politically." He added, "And in the '60s and '70s liberals were guilty of that kind of approach. What you're now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error. The concept of judicial restraint cuts both ways."

Obama offered no examples of inappropriate judicial activism in the '60s and '70s.

At Elena Kagan's hearings, Arizona's Senator Jon Kyl seemed to reinforce the president's observation when he attacked her for her association with the '60s and '70s liberal former Justice Thurgood Marshall. Kyl insisted that Marshall embraced a "judicial philosophy (that) is not what I would consider to be mainstream."

Kyl also did not specify which decisions he thought were outside the mainstream.

The media didn't press President Obama or Senator Kyl for specifics. That is regrettable, for if they had done so we might have discovered the awful truth. Judicial activism -- that is, the willingness to make or unmake law and expand or contract government -- is embraced by both conservatives and liberals in equal proportions. What distinguishes them is not whether they are judicial activists, but on whose behalf they act.

During the Kagan and Sotomayor hearings hundreds of articles and commentaries were written dissecting the various methodologies justices used to arrive at their decisions: Scalia's originalism, Souter's interpretationism and Sotomayor's legal realism. What we didn't learn was that these methodologies rarely guide the justice to a decision contrary to his or her conception of the end of the law.

Statistical analysis of Supreme Court voting patterns validate the unsurprising conclusion that conservatives interpret the Constitution to support conservative objectives, while liberals interpret the Constitution to support liberal objectives. As Justice Benjamin Cardozo observed 70 years ago, the choice of the rules justices apply "will be determined largely by his conception of the end of the law."

Constitutional conservatives insist they can be distinguished from constitutional liberals by their support of states' rights. The facts prove otherwise. Between 1991, when Clarence Thomas gave so-called states' righters a five-vote majority on the Supreme Court, and 2008 the Court invalidated state actions in 111 of the 202 -- or 55 percent -- of the cases it decided. During a similar time-span the liberal Warren Court invalidated state actions in l28 of 239 -- or 54 percent -- of the cases it decided.