Institutional Norms and Moderate Politics

James Fallows today touched on one of the foundations of political moderation as I’m defining the term here. That is a commitment to institutional norms that supersedes (or at least compliments) other values.

Say, for instance, you’re a conservative Republican U.S. Senator from Pennsylvania. Most of the time, fine, act like a Republican and vote with your party. But sometimes, if a certain piece of legislation would be good for your state, even if your national party as a whole doesn’t back it, you’ll vote for it anyway. That’s a competing value (Pennsylvania trumps Republican, in this case), but an important one. Rick Santorum did this on a few union bills while he was in the Senate.

Other times, though, you need to vote as a member of the U.S. Senate. Such votes would put the institutional interests of the Senate (or legislature as a whole) over those of party or state. For instance, in a dispute over the relative power of the presidency, you might vote against a president from your own party in order to preserve the power of the legislature. One example where I think Congress failed in this regard was the issue of warrantless wiretapping. Previously, Congress has passed legislation limiting such practices and establishing a clear path for such actions (with special courts). Bush violated that law and in the ensuring scuffle the Congress basically responded by giving him a blank check for the new (illegally established) process. This will make it more difficult for Congress to regulate such activity in the future. In the process, they’ve ceded basic civil liberties to the discretion of the president.


I think Roberts and Alito probably believed what they said at their confirmation hearings: they think of themselves as impartial arbiters of the law. It’s just that, like many of us, they are not particularly good at self-analysis or predicting how we’ll act in very different circumstances.

Legally, the members of the Supreme Court can decide cases however they want. They can vote their ideological preferences in every case regardless of any other pressures. That’s their authority as the highest court in the land. But historical norms of the institution are supposed to prevent them from doing so. The justices are supposed to give some degree of deference to the decisions of the past, the powers of a democratically elected legislature and president, and the text of the Constitution itself. Of course, what degree of deference is necessary is in the eye of the beholder (and the subject of the next post). We need justices on the court whose consciences lead them to restraint. Whatever their self-conceptions, Roberts and Alito have not demonstrated that their consciences lead them to judicial humility.

Put differently, if you were looking for a model Supreme Court Justice, Chief Justice Roberts would provide a much better case study in how to be a conservative justice than how to be a judicial umpire. He may think of himself as the latter, but he demonstrates the former much more often.

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