Gary L. McDowell, The Language of Law and the Foundations of American Constitutionalism

Excerpt

In 2009 the New York Times reported that according to “widely accepted political science data,” the Supreme Court under the leadership of Chief Justice John Roberts was “the most conservative one in living memory.” The data in question ranked justices according to whether their votes favored “criminal defendants, unions, [or] people claiming discrimination” (liberal) or “prosecutors, employers, and the government” (conservative). Implicit in this approach was the assumption that judges are and ought to be political actors in more or less the same way that legislators and members of the executive branch are: despite the pretense of attempting to discern the meaning of a statute or Constitutional provision, what really matters is which interests their decisions favor. And given the ever-expanding range of rights that individuals will claim against government, over time the courts can be expected to move the nation (with occasional “conservative” pauses) in an increasingly liberal or “progressive” direction. …