In today's NYT, Harvard law prof (and Reagan-era SG) Charles Fried argues that the Supreme Court under Rehnquist has consistently pursued a policy of promoting classical liberalism:
Since the mid-1970's the Supreme Court has been fashioning a series of doctrines that have been characterized as conservative, though I would call them liberal with a small l, the liberalism of classic individualism. These decisions - about race, free speech and campaign finance, property rights, constitutional criminal procedure, religion and federalism - have not, as their opponents have caricatured them, been extreme or lacking in nuance. ...BS. Yale law prof and blawgger Jack Balkin correctly points out the rather simple error in Fried's analysis:
What decisions like Casey v. Planned Parenthood, United States v. Lopez, and Hibbs v. Department of Social Services have in common is not they are are all classical liberal decisions. What they have in common is that Justice O'Connor joined in them or wrote them. So perhaps Charles is really saying that he wishes that O'Connor was more of a classical liberal, and that she has disappointed him in Grutter (the affirmative action case) and McConnell (the campaign finance case). Fair enough. But one shouldn't expect a swing Justice like O'Connor to match a particular coherent political ideology. That's simply not what such Justices do. And don't expect a Court whose decisions depend on what swing Justices do to produce a coherent political ideology. That's not what multimember bodies do, either.Exactly right. My professional life is devoted to studying a multimember decisionmaking body called the board of directors. Multimember decisionmaking bodies have a very hard time hewing to a coherent policy with respect to widely disparate decision opportunities. For one thing, group members often vote strategically. Vote trading is common on boards (and presumably on multimember courts of judicial biographies are to be believed). As I pointed out in my article, Why a Board? Group Decisionmaking in Corporate Governance, although we might assume that group decision making has a moderating influence, social dilemma experiments demonstrate that groups actually make more extreme decisions than individuals. Finally, basic collective action problems, such as Arrow's Impossibility Theorem, suggest that group decisionmaking can often cycle between competing preferences. In sum, Supreme Court decisions reflect the personal policy preferences of a temporary and often-shifting alliance of 5 or more justices, but cannot be expected to consistently reflect a dominant ideology in the absence of a much more cohesive grouping than exists on the Court today.
