Why Conservatives Prefer Sedentary (rather than activist) Judges

One of George W's few (only?) inarguable successes is in the area of judicial appointments. Intolerant of activist judges who pretend to be members of the legislative rather than judicial branch (ignoring precedent or strict interpretations of the law) George has moved to reverse a trend of recent decades. His appointments of Samuel Alito and John Roberts to the Supreme Court have been only the most visible of his many court appointments. As with so much about George, success in his goals actually represents a setback for the country. George is judging judges through the lens of an outdated philosophy.

Our founding fathers were Enlightenment thinkers - inspired by the genius of Isaac Newton and John Locke, British thinkers from an earlier generation. Galileo and Copernicus had observed that the earth seems to revolve around the sun, but couldn't explain why centrifugal force didn't send us spinning off of the earth's surface into space. They had data but no theory. Newton, with his theory of gravity, explained both why the earth spins around the sun and why cows, dogs, and fair maidens don't spin off of the surface of the earth and into space as our little planet hurtles around the sun at 67,000 miles per hour. Our Renaissance thinkers embraced reality as superior to authority, refuting the Bible and Ptolemy and siding instead with the data resulting from their observations. The Enlightenment thinkers added law to this data. And at their best, Enlightenment thinkers imitated Newton, articulating laws that explained planets and people. For George, Enlightenment thinkers represent the height of intellectual progress.

Renaissance thought was essential to progress, but it was not enough. Enlightenment thought turned out to be no different. In this way, even philosophy is rather like any product invention - delightful at one point and insufficient at another. Imagine people in the 21st century having to use hand cranks on cars and you can imagine the complications arising from governance in the 21st century that relies on centuries-old philosophy. Just as Enlightenment replaced Renaissance thought, so did Pragmatism displace Enlightenment thought. At one point Enlightenment philosophy was the height of intellectual progress. That point has passed.

Teddy Roosevelt - the man who invented the modern presidency - appointed Oliver Wendell Holmes (pictured above) to the Supreme Court. Holmes had helped to invent pragmatism, the philosophy that became to the 20th century what Enlightenment thought was to the 18th century. Holmes' philosophy infected the thought of professionals in every discipline - including the law.

A pragmatist is less concerned with the universal application of a fork than whether it's appropriate for what he's eating. A fork is fine for salad but not for soup and questionable for donuts. A pragmatist wants a specific solution to a specific problem in a specific context. Engineers, thinking like pragmatists, may use equations and principles, but as starting points - not as the final solution. A true pragmatist might question whether such a thing as universals even exists. Einstein's relativity theory is replaced by quantum physics; both go beyond the delightfully clean and predictable and constant world of Newton's universe. Universals give way to the particular.

Activist judges offend conservatives for a couple of reasons. One is the obvious variation in outcomes that simply makes no sense. This month's Atlantic reports on such inexplicable variations in judgment.

Demographics may account for some of this variance, but they don’t explain the discrepancies that the authors found in the judgments of officials in the same buildings: At the federal immigration court in Miami, one judge granted asylum to 88 percent of Colombian applicants, yet another ruled in favor of just 5 percent.

This kind of variation drives conservatives nuts - and for good reason. But there is another reason that conservatives are so offended by activist judges. Conservatives are Enlightenment thinkers - unwilling to accept a world in which seemingly similar cases might be judged differently. They are offended, oddly enough, when judges use judgment.

For many conservatives, progress in technology is all well and good, but for them, there need be no "progress" in philosophy or worldview. Progress from Enlightenment thinking to Pragmatism represents a falling away from the truth - not actual progress.
George has succeeded at getting more conservatives appointed. To the extent that he has, he's succeeded at stifling progress on social issues. As seems to be his legacy, George's personal goals once again conflict with the general pattern of social progress.