It can be difficult to accurately label politicians with a single term that represents their political philosophy. Oftentimes, these labels oversimplify or even misrepresent a politician’s true position. For example, a politician who is considered “conservative” may be fiscally conservative but socially liberal.
Additionally, the definition of terms like “moderate” can vary greatly depending on one’s location or personal beliefs. Unfortunately, these labels can also take on derogatory connotations, such as the negative association with the term “liberal” in recent years. It’s important to remember that political ideologies are complex and multifaceted, and cannot be fully captured by a single label.
On the other hand, “Trumpism” is a brand of populism that is not based on any political philosophy or principle, but rather on a single person who appeals to a wide range of grievances and stokes fear and anger in the electoral process and democratic institutions. It is unfair to label all those with legitimate questions or grievances as anti-democratic insurrectionists simply because they are associated with this person.
It’s important to recognize that while labels can be helpful in communicating and categorizing, they often oversimplify the complexity of individuals and groups. People hold a range of beliefs and thoughts that can’t always be captured by a single label. It’s important to approach others with an open mind and a willingness to understand their unique perspectives, rather than relying solely on preconceived notions based on labels.
When it comes to the judicial world, people often use labels to describe a particular judicial philosophy. Terms like “activist,” “textualist” and “strict constructionist” are used as shorthand to classify judges and communicate information about them to others.
However, labeling judicial philosophies is more complicated than labeling political philosophies for two reasons. First, statutory interpretation and common law jurisprudence are complex, making it difficult to accurately categorize and label different methods for deciding cases. Second, there is a tendency to correlate judicial philosophies with certain political ideologies, which can lead to assumptions and criticisms when a judge deviates from that ideology. It’s important to recognize the nuances and complexities of judicial philosophy rather than relying on simplistic labels.
It’s been interesting to see the reactions to the end of the Supreme Court’s term a few weeks ago, with many Democrats denouncing the court as ideologically motivated and extreme. While I can understand their concerns, I think they may be misguided in their assessments. The court isn’t simply committed to conservative outcomes. Furthermore, some of the fears about the court stripping away citizens’ rights are overblown hyperbole.
Of course, the reaction and exaggeration are a mirror image of past Republican reactions to landmark decisions over the past 10 years that they disagreed with, particularly the decisions over Obamacare, wherein Chief Justice John Roberts voted to uphold the universal national health care plan and wrote the majority opinion. Republicans attacked the court, but saved special venom for Roberts, who was labeled a “traitor” by many because of his decision (and many others he made).
Meanwhile, every time a decision is rendered that former President Donald Trump and his followers disagree with, they have taken attacks on the judiciary to a new level of angry vitriol and laced those attacks with juvenile name-calling and outlandish conspiracy theories.
This behavior from those with competing political agendas has been ongoing and continues to this day. We decry these attacks on the judiciary as dangerous when our political opponents raise them, but validate them when they align with our political interests. But it’s important to recognize that the judiciary is different from other branches of government.
Our government system relies on the judicial branch to uphold the Constitution and laws. For this to work, it’s crucial that the public and officials respect the rulings made by the courts. It’s not acceptable for judicial decisions to be influenced by fear of personal attacks or populist backlash.
Public officials have a duty to uphold and respect the decisions made by the courts. The separation of powers is a fundamental principle of democracy, and we must do everything we can to protect and uphold it. While it’s perfectly healthy to be critical of court opinions and engage in public debate, attacking the court as an institution or individual justices undermines the legitimacy of the judiciary and is destructive to our form of government.
Most media outlets do not help the general public understand court decisions and the legal jurisprudence underpinning the decision. Often, the media surrender their print and air space to agenda-driven political spinsters who use court decisions as a platform to instigate conflict and exploit the fear and anger of the constituent groups that support them. Framing the conversation around political talking points, simple labels and convenient caricature is easier to present to an emotional audience with a short attention span than education, in-depth analysis and thoughtful discussion.
In today’s political world, the spinsters understand that conflict is what is being bought, sold and promoted. Respecting the judiciary and, by extension the rule of law, does not make people angry enough to turn out to the polls, write checks and win elections. Promoting conflict does. So, the courts and court decisions become “wedge issues” exploited by political operatives to activate voters for one political interest or another.
To guard against corrosive reactions to court decisions, we should have a few basic ground rules for understanding decisions of the court.
First, don’t believe the partisan hype when the decision drops. Ignore the headlines in your newsfeeds. Be skeptical of the media’s quick reaction rating- and click-driven productions. Don’t listen to the talking heads. Delete the emails you get from political interest organizations. Rarely, if ever, do these snap reactions align with what the decision actually says or does.
Second, read the decision yourself. If you have made it through the sixth grade, legal writing, especially from our nation’s highest court in the modern era, is clear, coherent, interesting and accessible. Unlike reading a statute or regulation, court opinions tell the story of the case that led to the decision, followed by legal analysis that considers competing arguments, considers precedent and provides a rationale for the decision that was reached.
When reading the decision, be sure to read the dissent as well. The dissent will provide you with an alternative analysis of the law and a rationale as to why the majority may have been wrong. You can also glean from a dissent the implications of a court decision, although beware of the fact that dissenters sometimes overstate the consequences of a decision and/or sometimes take cheap shots at the majority opinion. That said, dissents can be roadmaps to future litigants looking to narrow the application of the case or to overturn the case in the future.
Finally, resist the temptation to celebrate a “good” decision or attack a “bad” decision by the court. We should not treat the work of the judiciary like we treat sporting events and respond like fans do to the wins and losses of their favorite teams. Take time to thoughtfully consider how the decision affects you, your family, your community, Nevada and our nation as a whole.
If you don’t like a decision, advocate for changes in the law through the legislative and executive branches of government. Or remember in the next election that federal judges, including Supreme Court justices, are appointed by our political leaders and vote for people who will appoint judges who engage in a jurisprudence that is consistent with the way you think the Constitution and laws of our country should be analyzed and applied.
For example, I have developed what many would label a “conservative” legal philosophy wherein I typically agree with decisions that the court attempts to discern what the textual meaning of a constitutional or statutory provision is. I generally support elected officials who appoint judges consistent with this approach to deciding cases.
In my experience as a legal practitioner, I have found that a so-called conservative legal philosophy is often the most effective approach to jurisprudence. Generally, this approach to deciding cases involves interpreting constitutional or statutory provisions based on their textual meaning as understood at the time of their ratification. In other words, the terms used in the provision must be understood in their historical context to determine their true meaning. This approach is based on the belief that the common meaning of the terms as expressed in the text is what the drafters and ratifiers intended.
If the provision is still ambiguous, a conservative jurist would rely on the fundamental structural understandings of the nature of government to guide their approach. For example, the federal Constitution is a document of enumerated powers, which means that Congress or the executive branch needs a specific grant of authority to do almost any action. Conversely, state constitutions are limiting documents and state legislatures have plenary power unless specifically limited by the constitution.
When it comes to precedent, judges at lower levels are required to follow binding precedent, even if they disagree with it. However, for justices at the highest levels, the question arises of whether they should follow precedent or refuse to follow prior case law if it was not decided on conservative principles. In the context of constitutional interpretation, it is a conservative legal position to interpret the constitution or interpret statutes according to conservative principles of construction, even if that requires reversing prior precedent.
The foregoing paragraphs provide a very basic outline of conservative jurisprudence and is not meant to be an exhaustive explanation; but, in the interest of transparency, this should provide a starting point for understanding my interpretive philosophy in the columns I write over the coming weeks reviewing the major cases decided by the “conservative” majority of the U.S. Supreme Court in 2023. Together, dear reader, we will take an in-depth look at what was decided in these cases and consider what these decisions mean for Nevadans.
Jason D. Guinasso is the managing partner of law firm Hutchison & Steffen’s office in Reno. He is a litigator and trial attorney who also maintains an appellate practice, which includes petitions for judicial review of administrative decisions, extraordinary writs, and appeals to the Nevada Supreme Court. He also is legal counsel for the Reno/Fernley Crisis Pregnancy Center and an associate pastor at Ministerio Palabra de Vida where he serves a diverse multicultural church.