The Truth About Judicial Stereotypes

Liberals love to perpetuate the stereotype that “liberal” judges rule in favor of minorities, the poor, and the little guy (Good Things), while “conservative” judges rule in favor of evil corporations, police departments, and white males (Bad Things). This parallels the stereotype that Democrat politicians help the criminally accused and the working man while Republican politicians help evil corporations and police departments.

The White House and their allies are already trying to push these long-ingrained stereotypes in preparation for this summer’s upcoming Supreme Court confirmation battle to replace Justice Stevens’ seat. Like most stereotypes, however, they are not true.

Republican Supreme Court appointees have long-stood against heinous racial discrimination. For example, President Rutherford B. Hayes, a Republican, appointed Justice John Marshall Harlan, the lone justice to dissent in the Civil Rights Cases, 109 U.S. 3 (1883) and Plessy v. Ferguson, 163 U.S. 537 (1896); these cases permitted segregation and “separate but equal” discrimination. President Herbert Hoover, a Republican, appointed Justice Owen Roberts (full disclosure: a fellow Penn and Daily Pennsylvanian alumnus), the lone Republican appointee on the Supreme Court in Korematsu v. United States, 323 U.S. 213 (1944), a case where six Democrat-appointed justices ruled that the Constitution permitted the government to forcibly herd U.S. citizens of a particular ethnicity into concentration camps. Justice Roberts’ vigorous dissent said that “convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, [solely] based on his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States” was a “clear violation of Constitutional rights.” Interestingly, the liberals preferred “assembly area” as the euphemism for these concentration or internment camps.

Even Justice Stevens, whom the media now calls a “liberal lion,” did not stand up for the “little guy” nor his First , Fourth, and Fifth Amendment rights as much as “conservative” justices like Justices Scalia and Thomas did.

In Texas v. Johnson, 491 U.S. 391 (1989), Justice Scalia joined Justice Brennan’s (now there was a liberal lion) majority opinion ruling that the First Amendment protected the disgusting act of burning the American flag as political expression. Justice Stevens separately dissented; in his view the government may imprison flag-burners for such political dissent. In Kyllo v. United States, 533 U.S. 27 (2001), Justice Scalia wrote the majority opinion, with Justice Thomas joining, ruling that the Fourth Amendment requires the police to obtain a proper warrant before searching your home with sophisticated surveillance equipment such as FLIR (Forward-Looking Infrared). Justice Stevens authored the dissent, calling Justice Scalia’s bright-line rule protecting your home’s privacy “at best trivial.” In Kelo v. City of New London, 545 U.S. 469 (2005), Justice Stevens wrote the majority opinion, with all the “liberal” justices joining him, ruling that the government may seize your private property and give it to an “evil” corporation under the guise of economic development. All the “conservative” justices dissented. Justice Thomas’ dissent noted that the corporate redevelopment scheme was “suspiciously agreeable to the Pfizer Corporation” and that the harm from Justice Stevens’ opinion would “fall disproportionately on poor communities … the least politically powerful.” Even Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which so outraged the Democrat Congress and President Obama that they passed and signed the Lilly Ledbetter Fair Pay Act of 2009, was merely an extension of United Air Lines v. Evans, 431 U.S. 553 (1977), where Justice Stevens’ majority opinion rejected a female flight attendant’s Title VII gender-discrimination claim because she did not sue within the statute of limitations. Justice Stevens’ opinion referred to the discrimination Ms. Evans suffered as “merely an unfortunate event in history which has no present legal consequences.”

None of this is to criticize Justice Stevens. Instead, the above examples are but a few which show that the stereotypes of “liberal” judges and “conservative” judges are nonsense. President Obama should seek Supreme Court nominees based not on these inaccurate stereotypes but rather on whether they are experienced, qualified, and understand that courts interpret the laws that legislators write, not make preferential political policy. If, however, President Obama insists on seeking nominees based on whether they stand up for the little guy, minorities, and their constitutional rights … well, as the above examples show, he would do very well to nominate someone like Justice Scalia or Justice Thomas.