Friday, February 11, 2005


Bruce Ackerman's essay on forthcoming Supreme Court nominations offers the cliched parade of horrors that will ensue if the balance on the Supreme Court changes towards the right. There's nothing in that analysis that hasn't been written dozens of times elsewhere. But at least his terminology seems to be new:
There are two very different kinds of conservative. The worldly statesman, distrustful of large visions and focused on the prudent management of concrete problems has long been familiar. But Bush has more often relied on neo-conservatives with a very different temperament. They throw caution to the winds, assault the accumulated wisdom of the age, and insist on sweeping changes despite resistant facts. Law is a conservative profession, but it is not immune to the neo-con temptation. The question raised by the coming vacancies to the Supreme Court is whether American law will remain in conservative hands, or whether it will be captured by a neo-con vision of revolutionary change. The issue is not liberalism v. conservatism, but conservatism v. neo-conservatism.
Ackerman spends the rest of the essay describing Scalia and Thomas as "neo-cons."

What a weird choice of terms here. "Neo-conservative" originally described "new" conservatives who had migrated from the left to the right. Proto-typical neo-conservatives included Irving Kristol, Norman Podhoretz, and other intellectuals (mostly, but not always, Jewish) whose views included an aggressive foreign policy, a rejection of the isolationism that characterizes Pat-Buchanan conservatives, a disillusionment with the welfare state, and a general instinct to prefer American "greatness" over minimizing government at all costs.

Until now, however, I've never heard anyone use the term "neo-conservative" to describe Supreme Court Justices. The term is inapt in every conceivable way. It's as if someone criticized the war in Iraq by deeming it an example of "original intent jurisprudence."

Stuart Buck


Anonymous Anonymous said...

The "neocon" label on judge is shockingly idiotic.

Then again, I'm even more shocked that Ackerman didn't bother supplementing is inanity with some conspiracy-theorizing on the point that Judges Scalia, Bork, and Laurence Silberman have all worked at AEI.

10:29 PM  
Blogger C-C-G said...

Having debated many liberals online, I can say that, at least from my experience, many (but not all) liberals use "neo-con" to mean "stupid people who don't agree with me."

5:08 PM  
Anonymous Anonymous said...

I studied under Ackerman in the 70's, and this is no surprise. Here he is playing a game with the word, "conservative." Compare this to calling Communists "conservative" during the fall of the Former Soviet Union. For people like Ackerman, once an activist court has changed the law, conservatives cannot change it back to what it was, because this would be change, and conservatives are against change.

No, Bruce, you don't get it. Radical values do not become conservatiive values in the space of a few summers, having come not from the cake of custom and the wisdom of the ancestors, but merely from the scribblings of a few judges.

5:44 PM  
Anonymous Anonymous said...

I study under Ackerman now, and recognize - as anyone remotely familiar with his work would - that the tendency revealed by his use of "neo-conservative" is not ideological, but rhetorical: a penchant for coinage that dates back as far as the "transmitter-shields" and other novel phraseologies in Social Justice and the Liberal State. Indeed, nothing from the LRB piece indicates his intention to group Scalia and Thomas with Kristol and Wolfowitz. Also, I may be wrong about his, but I'm pretty sure the prefix "neo" simply means "new", and has not been redefined as the soul province of a movement, which - if Max Boot may be counted among its putative adherents - has no interest in owning it in the first place.

9:25 PM  
Anonymous Anonymous said...

Furthermore, to the extent that Ackerman's neo-con label has any meaning in common with its foreign policy usage (namely, that of "radical"), the Scalia/Thomas opinions in Hamdi et. al., which follow Rumsfeld and Prof. Yoo's 9/11-changed-everything ethos, clearly bear him out. Or is Habeas Corpus also too young a notion for the "cake of custom and wisdom of ancestors" standard (one, I might add, that smacks more of Herder than Jefferson).

9:42 PM  
Anonymous Anonymous said...


The term neo-con has a specific meaning. Ackerman and now you seem to suddenly decide that the neo prefix should mean new as opposed to the common usage of the term. Won't work. He is using the wrong term or he is totally wrong in his characterization of Scalia and Thomas, one or the other. From the article he is using the wrong term.

11:37 PM  
Anonymous Anonymous said...


You apparently do study under Ackerman, given that you obviously can't read a legal opinion. Any reading of Scalia's opinion (with Stevens) in Hamdi shows that he is no disciple of Yoo:

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.Did you actually read that opinion before you ripped on it? Or do you take evening classes at the Harry Reid School of Judicial Interpretation?

10:50 PM  
Anonymous Anonymous said...

Would I be out of line telling JesseE that simply from reading his first post, I can tell that he's insufferable? His second confirms this snap judgment.

Anyone who pretends that "neoconservative" is not used by the left these days as shorthand for "conservative who doesn't agree with our positions on the war" or even just "conservative" is fooling themselves. That Ackerman did this in a non-American publication (the Europeans eat this up) makes it even worse.

Oh, and why do the Europeans eat it up? Remember the furor that resulted when David Brooks quite correctly noted that in the word "neocon," "'con' is short for 'conservative,' 'neo' is short for 'Jew'"?

10:37 AM  
Blogger madrak said...

Describing Sandra Day O'Connor as a genuine conservative, as Ackerman does, is bizarre. And it aptly shows what end the spectrum Ackerman is coming from.

12:21 PM  
Anonymous Anonymous said...


Under Prof. Ackerman's forumlation, the Supreme Court's revolution in criminal procedure in the 1960's, in which so many prior precedents were overturned that Justices joked about it from the bench, was the perfect encapsulation of neo-conservatism.

1:36 PM  
Anonymous Anonymous said...

I am reminded here of Ackerman's deadly serious and totally absurd attempts to claim Roe v. Wade as part of the legacy of the New Deal (Roe v. Wade being the kingpin of substantive due process, and the legacy of the New Deal being the repudiation of substantive due process). It is depressing to think that authors like Ackerman represent the peak of what passes for constitutional scholarship in the U.S. today. I really think that the state of this field is so politicized, inept, and self-interested that it is really frustrating.

4:19 PM  
Anonymous Anonymous said...

I am reminded here of Ackerman's deadly serious and totally absurd attempts to claim Roe v. Wade as part of the legacy of the New Deal (Roe v. Wade being the kingpin of substantive due process, and the legacy of the New Deal being the repudiation of substantive due process). It is depressing to think that authors like Ackerman represent the peak of what passes for constitutional scholarship in the U.S. today. I really think that the state of this field is so politicized, inept, and self-interested that it is really frustrating.

4:20 PM  
Anonymous Anonymous said...


In noting "Hamdi et. al.", my emphasis was on the "et. al.", since all three cases have been (and should be) read together. For the purposes of clarity, I probably should have said "Rasul et. al.": my mistake. Still, as mistakes go, this one was rather trivial, since for our interpretation of Scalia's alleged "neo-conservatism", the three cases are inseparable. Scalia defends Habeas Corpus in Hamdi (as you noted), but then goes out of his way to limit its scope to U.S. citizens. Nothing in the due process clause implies no such limitation. Why Scalia should believe otherwise is revealed by his dissent in Rasul (Stevens, on the other hand, joins the majority). Here, the spurious distinction between citizen and non-citizen due process rights enters as part of a larger project seeking to drastically limit judicial review of GWOT. Rasul's narrow issue of jurisdictional control in Guantanamo is just one dimension of Executive authority that Scalia, Rehnquist, and Thomas hope to immunize: we do not need Janis Karpinski's photo-journalism to grasp its wider implications. Hence the difference between O'Connor and Scalia. Hence neo-con as "radical". Hence Yoo.

4:56 AM  
Anonymous Anonymous said...

Anonymous II,

As to your claim that the principles manifest in Roe and the New Deal contradict one another, Ackerman's argument, as I understand it, goes as follows :
Though widely held, your interpretation is based on the myth that Lochner's defeat vis-a-vis the New Deal paralleled the defeat of individual rights-claims vis-a-vis the state. In contrast, Ackerman argues that the rejection of Lochner was not a rejection of substantive due process, but only one specification thereof: namely, as laissez-faire market freedom.
American Society (if not Richard Epstein) has generally accepted the New Deal principle, which denies a strict interpretation of contractual freedom as constitutional right. But the fact that Lochner misread the Contract and Property Clauses does not mean they do not exist. For Ackerman, the task for post-New Deal jurisprudence was to reconstruct the Clauses as specifying those private liberties which legitimately resist Democratic mangerialism. Or, as Jackson writes in Barnette, "transplant these rights [of property and contract] to a soil in which the laissez-faire concept or principle of non-interference has [not] withered".
Indeed, Ackerman would say, much case law in the past 50 years has done just that - redefining Lochner in the properly private sphere, and vigorously opposing statist intervention therein. Thus, he joins Easterbrook in rejecting an Indianapolis ban on misogynist pornography (American Booksellers), while arguing that the very same principle (private contract) should also lead Easterbrook to a dissent on Bowers. Similarly, it is precisely as a synthesis, not negation, of Lochner, that the judicial principle of the New Deal finds its exemplary expression in Roe v. Wade.

I gladly submit that Ackerman's story may appear more or less cogent depending on its audience: I myself have plenty of problems with it) Still, it certainly isn't "totally absurd", your nifty syllogisms notwithstanding.

A different, but potentially more successful, challenge could be made as to contemporary relevance. Since its appearance in the early 80s, Ackerman's project has been threatened from both directions; on the New Deal side, the Chicago-born nostalgia for old-style laissez-faire; on the Lochner side, the concurrent (sometimes coextensive) rise of religious and Executive zealotry. Still, the lawyer-economists' fever appears to be cooling (at least a few, it seems, have finally begun reading actual economics), while decisions like Lawrence v. Texas and Rasul (returning full circle) suggest at least a temporary commitment to post-Lochner civil liberties.

5:07 AM  
Anonymous Anonymous said...

Anonymous III,

Finally, I wouldn't read too much into the geography of Ackerman's publication. England is part of "new Europe", after all, and besides - you can't place her both in the Coalition of the Willing and the Sisterhood of the Weak-kneed. Even less becoming than such shameless rhetorical double-dipping is your insinuation that Ackerman - the legal world's equivalent of Red Auerbach - is employing the neo-con label as an anti-semitic surrogate. Please. Find another object for your hysterics. This dog most certainly will not hunt.

(ps: sorry for the delayed response. you know how those evening classes can be!)

5:09 AM  
Anonymous Anonymous said...

--you can't place her both in the Coalition of the Willing and the Sisterhood of the Weak-kneed--

Oh, sure you can.

Start reading EU Referendum. Tony's trying to have his cake and eat it, too.

Sandy P.

And the Euros have an image in mind when someone uses the term "neocon."

He tailored it to his audience.

10:16 AM  
Anonymous Anonymous said...

To respond to Jesse E.'s attempts to reconcile Lochner and Roe-- perhaps as a matter of arid legal theory Lochner does not necessarily contradict Roe, but the plain and undeniable fact is that New Deal jurisprudence rejected both personal substantive due process as well as economic substantive due process. The two leading schools of New Deal thought on the court were those of Hugo Black and Felix Frankfurter, and both rejected personal substantive due process of the kind exhibited in Roe (I could give you more examples of New Deal legal theorists who rejected substantive due process, like Learned Hand and Herbert Wechsler, but for the purposes of example I'll give you these two). Black never accepted personal substantive due process (see: Griswold dissent), and Frankfurter (joined by Jackson and Reed, both fellow New Dealers) always argued for an extremely limited substantive due process that would have precluded Roe (see: the "shocks the conscience" test). Even the ultra-liberal Douglas was extremely careful to avoid basing his opinion in Griswold on personal substantive due process. Barnette, which you cite, and other individual rights decisions of the 1940s and 1950s were not based on substantive due process, but on the doctrine of incorporation, which as formulated by its leading exponent, Black, had nothing to do with SDP; indeed, that doctrine negated substantive due process in Black's thinking. It was only with the rise of the counter-culture and the move for personal sexual freedom, and after the retirement of all the New Dealers save Douglas, that personal SDP began taking hold on the Court again, and it is no coincidence that the "Right to privacy" was only invoked successfully in cases regarding birth control and other rights of "sexual privacy," and categorically rejected in Whalen v. Roe as protecting a "right to privacy" outside of the bedroom. In short, the claim that Roe was a legacy of the New Deal is historically inaccurate.

12:28 PM  
Anonymous Anonymous said...

ne·o·con·ser·va·tism also ne·o-con·ser·va·tism (nê´o-ken-sûr¹ve-tîz´em) noun
An intellectual and political movement in favor of political, economic, and social conservatism that arose in opposition to the perceived liberalism of the 1960's: “The neo-conservatism of the 1980s is a replay of the New Conservatism of the 1950s, which was itself a replay of the New Era philosophy of the 1920s” (Arthur M. Schlesinger, Jr.).
The American Heritage Dictionary of the English Language, Third Edition is licensed from Houghton Mifflin Company. Copyright © 1992 by Houghton Mifflin Company. All rights reserved.
Selected Illustrations from the Concise Columbia Encyclopedia. Copyright © 1991 by Columbia University Press.

5:00 PM  

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