The American Spectator

Jonathan Chait wonders what poll respondants who describe themselves as “liberal” can mean by saying that Bush’s Supreme Court picks are “too liberal.” I can think of two reasons a liberal might think that.

One: A self-identified liberal might equate judicial liberalism with “judicial activism,” and understand that term the way Cass Sunstein, Jeff Rosen and others have worked to tendentiously redefine it: to mean striking down laws and/or precedents (including when the Constitution requires doing just that). This is, of course, an example of one of liberals’ many attempts to claim the mantle of “real conservative.” (This phenomenom pops up a lot in fiscal policy debates. Just this week, Shawn Macomber noted Mark Warner casting his tax-hiking self as “the true definition of a conservative.”)

Two: One can be a policy liberal and also be conservative on judicial issues, to the extent that the difference between the judicial left and the judicial right amounts to a willingness to separate the concepts of “good” and “constitutional.” Judicial liberals tend to have trouble with this; what is the point of a “living constitution,” after all, except to convert questions about the meaning of the constitution into questions of right and wrong? But presumably one can be liberal on any policy you could name without believing that one’s policy preferences are necessarily constitutional requirements. I, for example, am a libertarian on most social issues, but that doesn’t mean I think there’s a right to abortion or gay marriage in the constitution. Now, I don’t think that Roberts and Alito are too liberal, but that’s because my desire for a purer originalism is tempered by my analysis of confirmation politics; I might feel differently if I were less pragmatic.