The '70s Supreme Court is calling and wants to be left alone
A very real conflict of visions... Part 1
I am breaking this up into two parts because I want this to be readable. In Part 1, I want to lay a foundation for why understanding the different world visions we have will help in understanding the recent Supreme Court rulings. In Part Deux, I will apply those world visions to 2 current Supreme Court rulings and 2 future ones.
Watching, reading and participating in discussions about the recent Supreme Court rulings have reminded me of why it is important to understand the assumptions in other people’s arguments. Assumptions are the words not spoken, and they are the foundation of someone’s argument. Understanding the foundation, helps me to know where they are coming from, and how I might make a more persuasive argument for them to understand my point of view.
Visions Explain Assumptions. In my opinion, Thomas Sowell’s1 A Conflict of Visions, gives the best explanation of the main assumptions in people’s arguments and these assumptions are the driving force for their beliefs. Sowell calls these beliefs = visions. Think of it as a person’s vision of the world that he or she lives in. How the world works or how the world should work.
Q: Why does it matter to understand an individual’s vision, or beliefs?
A: Because the vision guides the individual’s thinking2 and reasons for the desired solutions and/or outcomes.
Sowell argues that there are 2 main visions (Constrained vs. Unconstrained) that have consistently competed with each other throughout time. In a C-SPAN interview in 1990, Sowell explained the following about his book on these competing visions -
It’s an attempt to explain why people reach different ideological positions from one another. Why two people similarly well informed and similarly well meaning will reach opposite conclusions, not just on a given issue but on a whole range of issues.
There are 2 things from this quote that help me have productive and positive discussions about deeply held beliefs -
Assume the other side is “well informed”
AND
Assume the other side is “well meaning”
Well informed. I think it is easy to assume that someone comes to the wrong conclusion because he or she must not be “well informed” (which can be the case at times). However, that person’s vision of the world drives her or him to seek out certain facts and information. This is why people with competing visions can both be knowledgeable, but still talk past each other with their competing facts and information. The point of having a conversation is to try and find the gaps in knowledge that you have because of your competing visions.
Here is a quick breakdown of these 2 competing visions.
Change is natural. As you can probably guess, people can change their vision of the world throughout their lifetime. You might have started out more in the “unconstrained” category, but now find yourself with a “constrained vision” and vice versa. Understanding the assumptions, helps to bridge the gap between our differences. That does not mean we will agree, but it gives us an opportunity to think about the arguments from a different perspective.
Q: Why does this matter?
A: Milton Friedman once said - “The only person who can truly persuade you is yourself.”
This is why my goal is to seek out information and to give information. I want people to have all the information possible so they can figure out for themselves what they truly believe and why. The key to these type of discussions is being open to change your mind which can only happen when we are open to new information.
I reserve the right to change my mind based upon new information. - Me
Era of Constrained Supreme Court Judges
It is my opinion that we are entering an era of Supreme Court Judges with more of a “constrained” vision, and this “constrained” vision is competing with the “unconstrained” Supreme Court rulings of the 1970s. This is an unique time because of two reasons -
The “constrained” vision has not had a 6-3 majority in over 75 years.
AND
The “constrained” vision comes from an organized judicial philosophy that has developed over the last 30 years by The Federalist Society.
1970s produced judicial counter-revolution. The Federalist Society is also a byproduct of the dissatisfaction with Supreme Court rulings from the 1970s by conservatives. It has been a common complaint by conservatives that conservative Supreme Court judges never seem to stay that way, but liberal judges always do. Therefore, a group of conservatives and libertarians organized The Federalist Society in 1982 for a couple of purposes.
Reform the current legal order by promoting the judicial philosophy that
states exists to preserve freedom
separation of governmental powers is central to Constitution
duty of judiciary to say what the law is, not what it should be
Provide a forum for legal debates with legal experts on both sides
You can see the “constrained” vision coming through in these purposes -
Humans are flawed and need institutions
Politicians are flawed and need separation of powers
*Key to vision* - Process matters more than outcome because the right process will lead to the most optimal outcomes for the majority of people
The Federalist Society has worked within the rules of the game (process) and has grown to a huge organization with many members and contributors throughout the United States. The following Supreme Court justices are currently contributors to the organization -
Chief Justice John Roberts
Associate Justice Clarence Thomas
Associate Justice Stephen Breyer
Associate Justice Samuel Alito
Associate Justice Sonia Sotomayor
Associate Justice Neil Gorsuch
Associate Justice Brett Kavanaugh
Associate Justice Amy Coney Barrett
“Constrained” wants multiple perspectives. One of the reasons why The Federalist Society has been so successful is because they seek out multiple viewpoints. Understanding different points of view can also help sharpen your own arguments. It has been said that one of the problems with the pro-choice movement is that they have no idea what the arguments are on the pro-life side, but the pro-life side can give you all the arguments for the pro-choice point of view. The Federalist Society has provided an atmosphere of learning to anyone, but conservatives and libertarians have mainly taken advantage of it.
Trump and The Federalist Society
Here are the main points so far -
Broadly speaking, 2 visions of the world (constrained vs. unconstrained) are constantly competing and have been throughout history
These visions drive our reasons for solutions to daily life and problems
1982 - the constrained vision organized into a defined judicial philosophy as a counter-revolution to the 1970s judicial decisions
2016 - the election campaign that changes everything
Donald Trump is not a conservative, and that is ok. This newsletter is not a debate about his ideology. However, Trump recognized that conservatives did not trust him once he won the Republican nomination for President. Trump was very savvy and went to The Federalist Society and asked for names of judges to nominate for Supreme Court justices because Mitch McConnell was holding one seat open from the sudden death of Justice Antonin Scalia. Conservatives were out of their minds worried about who would replace their champion and protector of the Originalist interpretation of the Constitution.
In one of Trump’s multiple media events, he provides the names of a list of judges he would choose from, if he became President. Once I saw the names on that list, he won my vote. Those were the judges that I wanted, and I knew I had a better chance of getting those judges through Trump than Hillary Clinton, regardless if it happened or not. This really did win over many conservatives, and the amazing part was that Trump did stay true to his word.
2017 - President Trump nominated Neil Gorsuch from the list
2018 - President Trump nominated Brett Kavanaugh from the list
2020 - President Trump nominated Amy Coney Barrett from the list
Again, this matters because now there are multiple Supreme Court justices on the court with a judicial philosophy rooted in a “constrained” vision. Americans are not used to having “constrained” perspectives be consistent. Therefore, it is understandable why this vision would make some people uncomfortable because it feels extreme or out of control. But this movement has been transparent, organized and growing for 30 years. The “Unconstrained” vision became complacent believing that if they simply said the equivalent of “the science is settled” (aka - stare decisis3) then that would be enough.
I have no doubt the “unconstrained” vision will have its’ own counter-revolution, or response to the “constrained” vision because that is the way it has always worked. So goes the infamous phrase - “eternal vigilance is the price of liberty.” Constantly being vigilant is hard which is why these competing visions will always ebb and flow. We tend to take an Alaskan cruise after our victories to recover from our vigilance.
Judges - Constrained vs. Unconstrained Visions
The graphic below is how I have categorized the judges. I have put Chief Justice John Roberts in the middle because he toggles between the two visions with his overriding concern being the legitimacy of the Supreme Court. I have kept Justice Breyer because he retires after this round of Supreme Court orders are released. Justice Ketanji Brown Jackson will take over in the next session, and it is believed she will carry on the unconstrained vision of Breyer.
From this list, we currently have 5 judges with a mostly consistent constrained vision. One of their main concerns will be - the proper process matters more than the proper outcome. One of the reasons why is because of the belief that the proper process will lead to the most optimal outcome for the masses.
Before moving on to the 3 Supreme Court cases, here are the brief points to remember with these competing visions -
Constrained - Proper process matters more than desired outcomes AND if you do not like the process then use the proper process to make changes
Unconstrained - Desired outcomes matter more than the process because the process is mechanical and unfeeling and the outcomes care about the person
This is not a reflection of right or wrong. It helps to understand why the Supreme Court decided the way it did and what options the “unconstrained” vision has to get what they want.
The ‘70s Supreme Court is calling…
… And they want to be left alone.
Continue reading in Part Deux.
Thomas Sowell is a 91 years old economist, historian and author of more than 45 books.
Jason Riley, Maverick: A Biography of Thomas Sowell, 2021, p. 155.
Stare decisis is a doctrine that courts will follow the law and logic of previous case decisions. This doctrine is a principle most often used, but it is not set in stone. If it was, Plessy v. Ferguson - “separate but equal” - would still be in play AND Japanese style internment camps would also be legal (Korematsu v. United States), just to name a few.
This and part two are so helpful and understanding the courts decisions.
The administrative state is the hidden power that we all forget about (or don't know about). And now I have a crush on Sam Alito.