The New Republic argues that David Souter's adherence to precedence has made him the only true conservative, as opposed to a movement conservative, on the Supreme Court over the past few years:
Souter's departure offers a timely reminder that when it comes to the courts, we need to be careful about our terms. Though Souter's decisions were welcomed by ideological and partisan liberals, they were judicially conservative decisions. In fact, his were among the only consistently conservative decisions the court has known for the last two decades.
The reason is that there is a difference between an ideological or movement conservative and a judicial conservative. Judicial conservatives generally have great respect for the law, and for legal decisions that have been made. This is the essence of what is called stare decisis--let the decision stand. Upholding precedent staunches the forces of change--and typically, that generates conservative results. But when the precedent you are upholding is precedent set by the Warren Court, holding back the forces of change means enforcing liberal decisions against radical demands for change from movement conservatives.
From 1953, when Earl Warren joined the Supreme Court, until well into the 1970s, the Supreme Court issued one liberal opinion after another--opinions that enhanced protections for criminal suspects, took the government out of American bedrooms, demanded an end to segregation, insisted on equal protection for women, and identified and enforced a woman's right to choose abortion.
Asking the Supreme Court to overrule these decisions is anything but judicially conservative--it's downright radical. And when the judicially conservative David Souter was asked to toe the movement line, he insisted on a very conservative response: No. He alone stood for judicially conservative values, insisting on maintaining and supporting the Court's own doctrine and decisions. He stood by stare decisis.
Its a good read, and a useful way to evaluate the various labels placed on both ideologies and approaches to the Constitution.
It puts an interesting spin on the decisions of Justices Scalia and Thomas for example:
...the justices we think of as the genuine conservatives, led most prominently by John Roberts, Samuel Alito, and Clarence Thomas, have made no secret of their eagerness to dump, trash, ignore, overrule, overturn, bury and immolate volume after volume of the Supreme Court's liberal precedents.
Thomas--a hero for the conservative movement--is more than delighted to revisit and reject precedent where he finds it out of step with a proper reading of the constitution. No less an authority than Antonin Scalia has said of his colleague that Thomas "doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, 'Let's get it right.'"
Here's where movement conservatism -- which we might define as political support for a set of beliefs that we label conservative -- butts up against (and even contradicts) classical conservatism which is defines as a system of government which respects traditions and the slow organic way that law develops over history. To seek to overthrow tradition, precedence, is to behave radically, not conservatively. Society gets law right gradually over time, not at the single stroke of a pen.
This argument is sure to go nowhere with contemporary conservatives of course.
