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.



The Democrats’ War at Home

How can the president’s party defend itself from the president’s foreign policy blunders?

Why Time Is on Our Side in the Fight Against Ebola

Piper Kerman on Why She Dressed Like a Hitchcock Heroine for Her Prison Sentencing

Catacombs Where You Can Stroll Down Hallways Lined With Corpses

Homeland Is Good Again! For Now.


Cringing. Ducking. Mumbling.

How GOP candidates react whenever someone brings up reproductive rights or gay marriage.


How Even an Old Hipster Can Age Gracefully

On their new albums, Leonard Cohen, Robert Plant, and Loudon Wainwright III show three ways.

The U.S. Has a New Problem in Syria: The Moderate Rebels Feel Like We’ve Betrayed Them

We Need to Talk: A Terrible Name for a Good Sports Show by and About Women

Trending News Channel
Oct. 1 2014 1:25 PM Japanese Cheerleader Robots Balance and Roll Around on Balls
  News & Politics
Oct. 1 2014 4:15 PM The Trials of White Boy Rick A Detroit crime legend, the FBI, and the ugliness of the war on drugs.
Oct. 1 2014 2:16 PM Wall Street Tackles Chat Services, Shies Away From Diversity Issues 
Gentleman Scholar
Oct. 1 2014 4:55 PM Blood Before Bud? Must a gentleman’s brother always be the best man at his wedding?
  Double X
The XX Factor
Oct. 1 2014 5:11 PM Celebrity Feminist Identification Has Reached Peak Meaninglessness
  Slate Plus
Behind the Scenes
Oct. 1 2014 3:24 PM Revelry (and Business) at Mohonk Photos and highlights from Slate’s annual retreat.
Brow Beat
Oct. 1 2014 3:02 PM The Best Show of the Summer Is Getting a Second Season
Future Tense
Oct. 1 2014 4:46 PM Ebola Is No Measles. That’s a Good Thing. Comparing this virus to scourges of the past gives us hope that we can slow it down.
  Health & Science
Oct. 1 2014 4:03 PM Does the Earth Really Have a “Hum”? Yes, but probably not the one you’re thinking.
Sports Nut
Oct. 1 2014 5:19 PM Bunt-a-Palooza! How bad was the Kansas City Royals’ bunt-all-the-time strategy in the American League wild-card game?