Supreme Court justices should not be called conservatives or liberals

In the Supreme Court decision in Donald Trump versus Sierra Club last week, a majority of the justices agreed to allow the administration to reallocate funds from the Pentagon budget to begin construction of the wall along the southern border while litigation over the issue proceeds in the lower courts. Justices Stephen Breyer, Ruth Bader Ginsburg, Sonya Sotomayor, and Elena Kagan, as described by the New York Times as the “more liberal justices” of the Supreme Court, dissented in this case.

Attaching such labels to the justices is a common and unfortunate fixture of our politically polarized era. To be sure, the conservative and liberal tags may be accurate to the extent that they characterize the results of a Supreme Court decision as more favorable to one or the other political camp. The labels serve to shorthand judicial decisions for people who desire to know the bottom line. Does the result favor my side or theirs?

But it does not follow that the justices should be characterized in the same way. The shorthand may be helpful to those readers or viewers seeking to absorb the implications of a Supreme Court decision. The problem is that these labels fail accurately to reflect both the role of the Supreme Court in our governmental scheme and the ways in which the justices approach the critical task of judicial review in our democracy.

Consider the Trump case. In his dissent, Justice Breyer argued that the Supreme Court should have in fact hesitated before permitting the administration to move forward with border wall construction, given the potential costs should the plaintiffs ultimately prevail. It is a fair point and a jurisprudentially conservative one in the sense that, without any exceptional circumstances, the Supreme Court ought to proceed cautiously before injecting itself into litigation still in its early stages.

It is worth noting that, notwithstanding the political colors with which the media choose to paint them, the justices often do not conform to type when we examine the extent to which they are actually promoting judicial action or restraint. In Gerald Mitchell versus Wisconsin, which concerns the scope of the Fourth Amendment, Breyer joined the plurality with Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh in concluding that exigent circumstances will “almost always permit a blood test” without a search warrant when a driver appears to have been driving under the influence of alcohol and is found by police to be unconscious.

The problem with this decision, as Justices Sotomayor and Neil Gorsuch argued in separate dissents, is that the “exigent circumstances” argument was not fully litigated in the lower courts. Judicial restraint is therefore the best course in such a case, Justice Sotomayor insisted, because courts at bottom “sit to resolve disputes among parties, not as self directed boards of legal inquiry and research.” The latter description more aptly applies to the federal administrative agencies or even to certain legislative bodies.

Adhering to traditional political labels to describe the important work of the justices obscures both what they do and how they do it. As the Trump and Mitchell cases demonstrate, the dividing line between the justices in their approaches to judicial review relates not to the political impact of a Supreme Court decision but rather to the extent of the commitment of the justices to either very incremental or far reaching change in the law.

However much political activists may prefer far reaching decisions, most of the justices, and particularly the chief justice, prefer more incremental moves, particularly in constitutional cases. Slowness, within the realm of judicial decision making, is typically a virtue. It creates a space in which issues can be vetted and explored, and positions examined and debated. It allows for the deliberative resolution of disputes that courts view as enhancing the legitimacy of their judicial work in the eyes of the public.

That media labels do not accurately reflect the jurisprudential inclinations of the justices is not terribly surprising. Judicial decision making can be complicated, and there is a natural tendency to simplify its intricacies. But that means that the justices must be sure to clearly explain themselves, particularly in results that are correct not because of the political impact but because they respect the legitimate bounds of the key judicial role.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”