The following op-ed co-written by Professor Jon Hanson, The conservative hypocrisy, originally appeared in The Baltimore Sun on December 12, 2005.
When it comes to Supreme Court nominees, conservatives are in agreement: Situation matters.
Pundits on the right shouted down Harriet E. Miers over concerns that her evangelical backbone would whither under Washington winds. Judge Samuel A. Alito Jr. stepped into her spot seeming of far more stalwart vertebrae, but as his backers have stressed recently, he is a creature of situation as well.
Responding to liberal criticism over a 1985 document in which Judge Alito championed the position “that the Constitution does not protect a right to an abortion,” conservatives quickly pointed out that the assertion was made in the context of an “advocate seeking a job” and thus could offer no insight into how Judge Alito would behave as a justice confronting an actual abortion case.
What makes all of this confusing is that conservatives are more or less devoted to a legal system and a policymaking approach that assumes situational influence is, in the vast majority of circumstances, trivial and irrelevant. Get the government out of our lives so that we can be “free to choose,” the argument goes. Unchain markets so that people can pursue their own ends as they see fit.
According to those extremely influential policy scripts, the consumer is sovereign and the outcomes of market transactions are good – no matter the nutritional content of the food, no matter the racial composition of the neighborhood, no matter the annual interest rate of the credit card, no matter the distribution of wealth. People choose freely and have no one but themselves to blame for any adverse consequences.
As Supreme Court Justice Clarence Thomas – dubbed “America’s leading conservative” by The Weekly Standard – wrote in his essay “Personal Responsibility,” in the 1999-2000 Regent University Law Review, “Success (as well as failure) is the result of one’s own talents, morals, decisions and actions.”
Many of the most basic conservative policy scripts in our ownership society are thus built on a conception of the person as independent and autonomous – the stuff of individualism and personal responsibility. The environment isn’t the problem; focus on the bad acts of a bad actor.
The poor, the overweight, the unemployed, the discriminated-against need to stop blaming others; they need to get to the gym, get to work and get busy. Just do it. The law owes them little more than a few more options and the knowledge that they will bear the consequences of, and full liability for, their choices. The situation is given and immaterial. Just ignore it. Again quoting Justice Thomas’ essay, there needs to be “much less of an emphasis on victimage.”
Similarly, when it comes to proper judging, the right approach is to “apply the law” and “stick to the Constitution” as originally written, as if the document has a clear disposition. Conservatives urge judges to ignore the context and focus on the plain meaning of the words. To venture beyond the “plain meaning” is to engage in politics. Situational considerations are to be shunned.
“But, again, the right does sometimes underscore the importance of situation. According to the conservative narrative, the situational force that is most harmful and significant is that of the “intellectual class” and the institutions where its ideas are developed, employed and advanced.
Elite academic institutions, by this reckoning, are a danger. The New York Times is a menace. And the Supreme Court, too, poses a threat. As Robert H. Bork put it in a recent Wall Street Journal op-ed, “the left-liberal liberationist” ideology promoted by such groups is leading to “moral anarchy.” The liberal intelligentsia that has seduced so many justices is, with those justices’ help, deeply influencing our lives. As a result, according to Mr. Bork, “the struggle over the Supreme Court is not just about law; it is about the future of our culture.” We are, by this account, being victimized by a victim culture.
Hence, the same individuals who are eager to point out how Supreme Court justices are vulnerable to situational manipulation – who suggest that our country is being destroyed because of the powerful influence of liberal elites over our culture and, in turn, our culture over us – are otherwise adamant in denying the role of situation in the lives of consumers, workers, voters, parents, criminals and any justices who happen to be strict constructionists. Situation, in their view, is critical in some contexts and irrelevant in others.
In the end, it should trouble us that those who lament the malleability of judicial behavior to situational forces are simultaneously calling for judges who will, for the most part, ignore the importance of situation.
Acknowledging the truth – that we humans, even the most autonomous among us, are situationally pliant – only when it serves our interests is nothing new, but it is deeply distorting. And it is particularly harmful when we acknowledge it only for the most highly educated, politically connected and powerful members of our country, leaving the weak, the forgotten and the voiceless to fend for themselves through “free choice.”
Jon Hanson is a professor of law at Harvard Law School. His e-mail is email@example.com. Adam Benforado is a Frank Knox fellow at Cambridge University. His e-mail is firstname.lastname@example.org.