More Confusion About "Conservative Jurisprudence"

Slate's blog on legal issues.
March 23 2008 11:33 AM

More Confusion About "Conservative Jurisprudence"

Adam, thanks; your admirably patient response  clears things up a little, but at the risk of trying your patience further, I must admit that my confusion has not dissipated. You say "conservative jurisprudence" means "only those methods of legal analysis most commonly employed by American 'conservatives.' " You can't mean that; by this logic, "conservative geology" is the method of geology most commonly employed by geologists who happen to belong to the Republican party. Wouldn't it be better to define "conservative jurisprudence" as a method of legal analysis used to generate conservative case outcomes?  Put this way, isn't there something a little embarrassing about the whole inquiry? Geologists don't evaluate each other on the basis of the political valence of their methodologies; why should jurists? I would think that "conservative jurisprudence" would be an insult hurdled by liberals at judges who care about political outcomes rather than the law. Instead, it is a badge of honor that conservatives pin on the robes of their favorite judges . How did this happen?

Here is what I think. At one time, conservatives could argue that judges who held themselves out as impartial were actually trying to move the law to the left. In the course of pointing out the errors of the judges, these conservative critics tried to explain what they thought the correct type of legal methodology would be. Defenders of the judges said that the judges were impartial, and the critics were trying to get the judges to adopt the critics' own politically biased, "conservative" legal methods. So the critics were called "conservative" jurisprudents while the defenders were called "liberal" jurisprudents. But people on both sides denied the labels: They wanted to be called "correct," not "conservative" or "liberal." It is too bad that this is no longer true. Now the chief concern seems to be whether one's erstwhile allies have gone heterodox: not whether Will's, um, legal philosophy is correct, but whether it is conservative.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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