It’s A Control Thing

Ken AshfordConstitution, Courts/Law, Sex/Morality/Family ValuesLeave a Comment

Orin Kerr asks "Why Do Conservatives Care So Much About The Courts?".  He notes that a public survey shows that:

When it comes to how they will vote in November, Republican voters say that the type of Supreme Court Justices a candidate would appoint is more important than the War in Iraq. The latest Rasmussen Reports national telephone survey found that 44% of Republicans pick the economy as the top voting issue, 30% name judicial appointments, and just 19% pick the War in Iraq. . . . Just 7% of Democrats name judicial appointments as the most important of those issues.

We'll assume the premise that this means that conservatives care more about the courts than liberals.

But why is this so?

It is because, Kerr opines, social conservatives see the Supreme Court as a barrier to the political process.  If you look at the hot-button issues of the past several decades — civil rights, abortion, flag-burning, etc., a court victory for the liberal side essentially takes the controversy out of the political realm — whereas a court victory for the conservative side leaves it in the political realm, where social conservatives believe they have a fighting chance.  And court victories for the conservative side don't seem to happen much:

It's partly loss aversion, I suspect, and partly the fact that constitutional decisions are much harder to reverse than legislative ones. Whatever the precise reasons, the cumulative experience of this happening year after year, Term after Term, starts to really hurt. It becomes a sore point, a raw wound. I think that goes a long way towards explaining why conservatives care significantly more about the courts.

I think that's a reasonable thesis, and one to which many people could probably subscribe.

However, Kerr is lending credence to the fallacious notion that when courts decide a matter on a constitutional basis, they remove the controversy from the political realm.  Or, as the typical layman say whenever a court strikes down a law as violating, say, the First Amendment, "Tsk!  The court is legislating from the bench".

This always infuriates me, for this reason:  the people, through their representative legislatures, created the constitution through the political process (including, in my example, the First Amendment) and gave the court the power to strike down unconstitutional laws.

So while it is true that school prayer or segregation, say, weren't put to the ballot box, the First Amendment and the Fourteenth Amendment were (i.e., they were ratified by the peoples' representatives).  And the Articles of the Constitution (also ratified by political process) give the courts the power to strike down laws which are unconstitutional.

I think the better explanation of why conservatives are interested in the courts is because, at least where social conservative lies, courts are better suited to compel the behavior of others, and "get at" the individual rights and behavior of others.

The decision to have an abortion, gay marry, use contraception, or pray in school — these are all things which individuals can do or not do, as they see fit; in other words, nothing inherently compels an individual to do those activities, or refrain from doing those activities.  But a favorable court decision can, for example, prohibit an abortion, nullify a gay marriage, ban contraception use, or compel prayer in school.  It ends the public debate about the issue.

In short, I think conservatives, at least social/religious conservatives, care more about the courts, because the courts, following the Constitution, tend to preserve and promote individual liberties which don't prescribe to some of the homogenous viewpoints of social/religious conservatives.  It's a control thing, basically.