"I confess to being a social conservative, but it does not affect my views on cases."

That's a quote from Justice Scalia. 

I'm sure that Justice Scalia believe that his political ideology doesn't affect his decision making, but is this cabining of ideology possible to the extent that he suggests?  Much ink has been spilled on the question of judicial decision making and whether a judge can completely separate her political views from her legal analysis.  Personally, I don't doubt that it's possible in many cases, but I find it hard to believe that Justice Scalia's political conservatism never affects his views on cases.  Does anyone want to take Justice Scalia at his word and argue that Scalia's political ideology never affects his legal opinions?  (For what it's worth, I would be similarly skeptical if Justice Ginsburg said that her political liberalism never affected her views on cases.)

Comments

[S.cotus]

I can easily point to cases where Scalia and RBG have reached results that are not consistent with the public’s view of “conservative” and “liberal.” Indeed, since Scalia penned Crawford and Blakely (which, if I told a non-lawyer about them, they would think they were liberal), at least part of his argument is credible.

But, because we don’t really know what it means to be a “social conservative” the discussion doesn’t go much further. Does this mean that if he was a legislator he would do X? Does it mean that he prefers the company of people that hate black people? (No... I don’t think he does.)

Instead, I suspect that “social conservative” is a proxy for something else. Perhaps it means has something to do with separation of powers. But why would a “social conservative” want to defer to the executive? Why not the judiciary? Maybe it means deferring to “business.” But most “business” disputes are often nothing more than disputes between businesses, or disputes about the way businesses should conduct their affairs. (For example, even a garden-variety slip-and-fall in a supermarket is really a dispute about a) whether a business should hire people to better wash their floors; and b) how much insurance (purchased from a company) a business should have.)

[Andrew Perlman]

S.cotus, I think you're right that we can point to lots of cases where justices write opinions that are inconsistent with their political leanings. Indeed, that's why I said that I think Justice Scalia is probably right about his ability to divorce his personal and legal views in many cases.

That said, I have trouble believing that the justices are able to divorce their political leaning from their judicial decisions in *all* cases. There are too many politically charged cases (e.g., affirmative action, abortion, Bush v. Gore) that break along ideological lines to believe that politics is absent from judicial decision making. And I mean politics in the non-legal sense. For example, when I say "conservative," I don't mean it in the sense of being conservative in terms of statutory interpretation; I mean it in the sense that the person believes in conservative social causes like illegalizing abortion, eliminating affirmative action, supporting school prayer, or electing Republicans. (Simply insert the opposite views for liberals.) When it comes to cases involving those sorts of purely ideological issues, the justices seem to be guided much more by personal belief than by legal analysis.

[ohismith]

Isn't it the social conservatives who are keening about moral relativism? Wouldn't it be a corollary of moral relativism to firewall one's principles as Scalia claims to do? Isn't this some kind of sin, pardon the expression?

[Hadley V. Baxendale]

Just because Justice Scalia has "conservative" principles, that does not mean he lets those principles "guide" his decisions on "purely ideological issues." There are valid, reasonable arguments for his votes on cases in those issues. For example, there is a reasonable legal argument that Roe v. Wade was wrongly decided and should be overturned. Others, including former Justice O'Connor, may disagree, but the arguments are nonetheless reasonable and principled. I'm guessing Justice Scalia would welcome that result as a policy matter, but his vote as a Justice would still be consistent with his judicial philosophy.

I'm sure I could come up with an example for one of the left-leaning justices, but I must return to the revenue-generating poertion of my day.