Shift Shows: Conservatives and liberals show their new true colors in Republican Party v. White

National Review Online ^ | June 28, 2002 | Eugene Volokh

[xsysmgr]

All five conservative justices vote in favor of a free-speech claimant. All four liberals vote in favor of the government. A seemingly surprising lineup, especially when the issue isn't a traditional left-right question such as campaign finance or religious speech.

But this 5-4 split in Thursday's judicial-campaign case (Republican Party v. White) tells us much about how far conservatives and liberals have moved since the 1960s and 1970s. In this case, and in other debates, conservatives have become populist libertarians, who trust the people and free speech — and liberals have become supporters of elite management, who trust the government and regulation.

In 39 states, voters choose judges. How should voters make that choice? In legislative- and executive-branch elections, the answer is simple: The candidates express their views on the subjects that voters most care about. Newspapers cover and comment on these statements. Advocacy groups react to the statements. The voters hear the debate, and choose.

But in judicial elections, many states dramatically restrict what candidates can say. Minnesota, for instance, not only bars judges from making promises of behavior, but also from "announc[ing their] views on disputed legal or political issues."

This broad prohibition, imposed by the state's supreme court, has been somewhat narrowed by later interpretations. Still, the bottom line is that judicial candidates are dramatically limited in what they can say to voters. They may discuss their experience or their views on efficient court administration. They may speak in generalities, such as "I'm a strict constructionist."

But many voters are understandably skeptical of abstractions, and want to hear details about legal questions that are important to them — for instance, what the candidate thinks about the state constitution's right to bear arms, or its right to privacy, or about expansions of tort liability. And under Minnesota law, judicial candidates must remain silent on those details.

Now if judges simply applied settled law, voters might have no interest in knowing the judges' "views on disputed legal or political issues." But in our legal system, judges, especially appellate judges, also make law.

They make constitutional law, when they interpret the vague terms of the federal and state constitutions. They effectively make law when they interpret vague statutes. And they've long made the common law: The Anglo-American rules of contract law, property law, tort law, and even criminal law were originally created by judges. Today, judges continue to develop many such rules.

So for voters to really be able to exercise an informed choice, they need judges to be free to speak. But at the same time, as the dissenters pointed out, this freedom would carry some cost: Judges would find themselves under some extra political pressure to abide by their campaign commitments, or risk being defeated by angry voters; and litigants might therefore reasonably fear that the judges will no longer be persuadable by legal argument.

So how to resolve this tension? The conservative majority — Justice Scalia, joined by Chief Justice Rehnquist and Justices O'Connor, Kennedy, and Thomas — concluded that the free-speech claim must prevail. The people have a right to decide who will make their laws; and candidates should therefore be at liberty to make their views known to the people. This is a position I call populist libertarianism: Trust the people, and trust liberty as the means of better informing the people.

The liberal dissenters — Justices Stevens and Ginsburg, joined by Justices Souter and Breyer — concluded otherwise. They interpreted the challenged speech restriction more narrowly than did the majority. But more importantly, they were more willing to restrict speech in order to serve what they saw as important government goals.

The dissenters didn't much mind that the speech restriction would deny voters some information about how judges viewed specific legal issues. In fact, they thought that voters shouldn't choose judges based on such information. The government, they reasoned, should be able to restrict speech to influence "the criteria relevant to the exercise of [the voters'] choice." And they would therefore have let thoughtful, responsible government bodies decide what judicial candidates may say and what they may not.

That's what I call the elite-management model: Trust the government, and the controls imposed by the government. The voters may be sovereign, but they should exercise their sovereignty in an environment where what candidates can say — and thus what the voters can hear — is regulated by governmental officials.

We can see the same pattern on other issues, such as policy debates surrounding school choice. Conservatives tend to support school choice because they think parents have a right to control their children's educations. They generally trust the parents to do a good enough job with this choice, or at least a better job than the government education establishment often does.

They think that creating more competition among schools will tend to over time improve education. And they therefore want to give the people the freedom to choose where to use the educational funds that the state would in any case have provided — a populist-libertarian perspective.

Liberals tend to oppose school choice, in large part based on their elite-management view. They believe that many parents, especially poorer and less educated ones, really can't do a good job choosing their children's educations. They are concerned that private-school educators, unsupervised by the government, may teach unwise or dangerous beliefs. Therefore, these liberals reason, it's better to have thoughtful, responsible government officials controlling as much of the educational system as possible.

There can be no single answer to the popular-libertarianism-vs.-elite-management debate. In some situations, elite management is necessary: Running the military is an obvious example, and I'd say the same for foreign policy and various other matters. And even elections require some managerial rules: The government must decide how candidates can qualify for the ballot, when the elections will be, and so on.

But in free speech and in education, popular libertarianism strikes me as the best idea — not because people's choices, under conditions of broad liberty, always yield good results, but because they generally yield better results than elite management does. In the 1960s and 1970s, it was liberals who were populist libertarians on free-speech issues (and sometimes education issues), and the conservatives who opted for elite management. That's still true in some situations, but increasingly the sides have flipped.

Many conservatives seem to have learned the lesson of freedom and of trust in the public. Many liberals, unfortunately, seem to have forgotten it.

— Eugene Volokh teaches First Amendment law at UCLA School of Law, and is the author of a First Amendment textbook. He also comments often on law on his weblog.

[white trash redneck]

Great article. Volokh is one of the brightest people writing today.

[Free the USA]

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[vbmoneyspender]

It would have been nice if Volokh thought through why what he calls 'elite-management' works for the military, but not for the education establishment.

The answer is that our armed forces are constantly having to compete against other militaries around the world. And if people in our military don't compete at a high level, then there is a high probability that they are going to get themselves and alot of their friends and associates killed.

Outcomes where people die if they don't perform well have a tendency to force people to perform well. Of course, I would be willing to revise my beliefs on School Choice if the same rules applied to the Education Establishment, i.e. if you compete and lose, you die.