We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
U.S. Constitution, Preamble
I think the liberal justices, generally, take the underlying sentiment of the Preamble seriously, and see the rest of the Constitution as the means to the ends laid out above. The Supreme Court is one of the major branches of the government thereby established, and so it ought to carry its weight in pursuing the goals of the Preamble. Therefore, the Court ought to promote and defend good policies, and reject bad policies. After all, in doing so, it isn't making policy, but merely exercising judgment to ensure that the popular branches are properly oriented to the "general Welfare."
I'd go so far as to say that about half that logic is uncontroversial, but the remainder draws in some premises that are not shared.
The liberal justices largely follow the dominant philosophy of the American legal profession--legal realism. This philosophy was formulated over a hundred years ago, in its rejection of the dominant mode of thinking at the time, which the realists called 'legal formalism.'
The formalist frame was that every case had an objectively best outcome, determined by applying the governing law to the operative facts. Sometimes judges would fail in this task, and sometimes even the best outcome wasn't very good--or even good at all--but there was a best outcome to be found.
The realists rejected this frame, accusing the formalists of feigning their roles as a disinterested third party merely applying law to facts mechanistically, and instead smuggling in their own policy preferences in determining outcomes. In fact, the realists claimed that this was inevitable: no matter how much the formalists claimed to be acting in good faith in trying to be neutral arbiters, they were actually just another set of partisan actors on the stage of national politics. Since neutral disinterest was only a convenient mask for the formalists, it's all politics anyway, and the realists might as well pursue their own policy preferences unhindered by feigned neutrality.
The core of Justice Scalia's judicial philosophy was a rejection of legal realism, and a return to the narrow conception of the judge's role commonly understood beforehand. While the realists correctly pointed out that no judge could consistently be perfectly disinterested, the ideal of neutrality was too important to jettison, and it is the obligation of every judge to stick as close to that ideal as possible. Judges are not permitted to reject bad policy solely on the basis of its badness; they are only allowed to overturn any policy--good or bad--if it is inconsistent with a controlling authority, and properly presented as part of a real 'case or controversy.'
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I think the liberal justices, generally, take the underlying sentiment of the Preamble seriously, and see the rest of the Constitution as the means to the ends laid out above. The Supreme Court is one of the major branches of the government thereby established, and so it ought to carry its weight in pursuing the goals of the Preamble. Therefore, the Court ought to promote and defend good policies, and reject bad policies. After all, in doing so, it isn't making policy, but merely exercising judgment to ensure that the popular branches are properly oriented to the "general Welfare."
I'd go so far as to say that about half that logic is uncontroversial, but the remainder draws in some premises that are not shared.
The liberal justices largely follow the dominant philosophy of the American legal profession--legal realism. This philosophy was formulated over a hundred years ago, in its rejection of the dominant mode of thinking at the time, which the realists called 'legal formalism.'
The formalist frame was that every case had an objectively best outcome, determined by applying the governing law to the operative facts. Sometimes judges would fail in this task, and sometimes even the best outcome wasn't very good--or even good at all--but there was a best outcome to be found.
The realists rejected this frame, accusing the formalists of feigning their roles as a disinterested third party merely applying law to facts mechanistically, and instead smuggling in their own policy preferences in determining outcomes. In fact, the realists claimed that this was inevitable: no matter how much the formalists claimed to be acting in good faith in trying to be neutral arbiters, they were actually just another set of partisan actors on the stage of national politics. Since neutral disinterest was only a convenient mask for the formalists, it's all politics anyway, and the realists might as well pursue their own policy preferences unhindered by feigned neutrality.
The core of Justice Scalia's judicial philosophy was a rejection of legal realism, and a return to the narrow conception of the judge's role commonly understood beforehand. While the realists correctly pointed out that no judge could consistently be perfectly disinterested, the ideal of neutrality was too important to jettison, and it is the obligation of every judge to stick as close to that ideal as possible. Judges are not permitted to reject bad policy solely on the basis of its badness; they are only allowed to overturn any policy--good or bad--if it is inconsistent with a controlling authority, and properly presented as part of a real 'case or controversy.'
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