Law in Contemporary Society

Drop the Dichotomies, Peep the Practice

-- By ThomasVance - 26 Apr 2022


First-year law students become all too familiar with categorizing justices and opinions as liberal or conservative. We engage in arbitrary line-drawing to help make sense of cases. This is most apparent in the substantive due process and takings clause cases. The terms liberal and conservative provide quick and dirty explanations for how and why Justices frame a sought-after unenumerated right or a unit of property. However, they are unsatisfying explanations for why justices do what they do. This essay will explore why we must and should ditch partisan explanations in favor of analyzing a jurist’s legal practice.

Liberal, Conservative, and Framing Unenumerated Rights

Whether a justice is considered “liberal” or “conservative” cannot completely explain their approach to identifying a contested unenumerated right.

For example, in Michael H. (1989), plaintiff challenged a California law that created a rebuttable presumption that a child born to a married woman living with her husband is to be a child of the marriage. Michael sought custody of Victoria, a daughter he created with Carole while Carole was married to Gerald.

The Court began its analysis by identifying the fundamental right that Michael sought to have recognized. Scalia’s plurality opinion is an example of how a conservative justice might define the right: the right of a child’s natural father to assert parental rights over a child born into a woman’s existing marriage with another man. Brennan’s dissenting opinion is an example of how a liberal justice might define the right: the right of an unwed father with a biological link and a substantive relationship with his child to assert parental rights over his child. Much turns on the initial identification as the Court’s next step is to investigate the existence of the right by looking to history, tradition, and (usually) change over time. If the right is not rooted in history or if the right is not analogous to a recognized right, the Court is less likely to find the challenged legislation unconstitutional.

The partisan labels – liberal and conservative – do not capture everything though. How would one classify O’Connor’s decision? O’Connor voted with Scalia but advocated for an identification of the right that Brennan likely would not disagree with. Is O’Connor’s framing liberal, conservative, or something else?

Liberal, Conservative, and Framing Units of Property

Similarly, partisan labels provide convenient, but incomplete explanations for competing definitions of a unit of property in Takings cases.

For example, in Penn Central (U.S. 1978), the owners of Grand Central Terminal challenged a New York City law that designated Grand Central as an urban landmark and prevented the owners from building atop of it without permission from a city commission. Penn Central argued that the statute was a taking of their air rights, entitling them to just compensation.

The Court began by identifying the unit of property that it would consider in its Takings analysis. Then, the Court determined the diminution in value of the identified unit of property. Under the diminution in value test, a near total diminution in value looks like a taking.

Again, liberal and conservative justices differed on the analytical unit. The Brennan (liberal) majority looked at the loss in value of the parcel as a whole following the restriction on air rights, while the Rehnquist (conservative) dissent looked at the loss in value of the air rights following the restriction on air rights. Takings cases turn on the specified unit of property. A “conservative” characterization of the unit of property almost always results in a total diminution of value. A “liberal” characterization of the unit of property likely will not result in a total diminution of value because the parcel as a whole likely has great value despite a government restriction on an interest in the property.

What, though, is ideologically liberal about a broad definition of the unit of property? What is conservative about a narrow definition of the unit of property?

What Happens When You Drop The Dichotomy?

Both the questions concerning framing units of property and regarding O’Connor’s framing of an unenumerated right expose the insufficient explanatory power of partisan labels. The labels distract from a nuanced understanding of the Court’s justices. Without the partisan labels, we are forced to discern something deeper from these cases: a peek into a justice’s practice.

A law practice may be a lawyer’s license and their network, but how they balance competing legal and policy concerns as well as visions of the future is very important to their practice. This balance informs the work they do, the outcomes they seek, and the people they associate themselves with. While jurists may not be practicing lawyers, their opinions reveal pieces that undergird their practice.

Take O’Connor’s concurrence in Michael H. Her vote indicates that she does not think the California law infringed on one of Michael H’s fundamental rights. Her opinion rejects Scalia’s narrow framing of the right and advocates for a more general one. Combined, O’Connor’s decision (vote + opinion) cannot be neatly categorized. Instead, her decision reveals a cautionary stance toward creating an unenumerated right, and a desire to fairly (fair to the person challenging the legislation) characterize the right that plaintiff seeks recognition of.

In O’Connor’s practice, it appears that she is interested in making balanced decisions. She wants to adhere to the original and precedential text while considering the needs of plaintiffs. The word “centrist” could not capture this balance as it lacks the same nuance that liberal and conservative lack. This ability to see a case and make a decision that considers both sides of a dispute also reflects a practice that could easily identify the strongest arguments for each party and a practice that welcomes alternative and contrarian viewpoints.


Close adherence to partisan explanations of legal decisions may capture some things, but it cannot capture everything. Instead, this essay has shown that the incompleteness of partisan explanations requires dropping the dichotomies and taking a closer look into a jurist’s legal practice.

I think the basis of this draft is a set of accurate observations. The question for editorially is whether the interpretation is convincing.

A lifetime reading Bruce Ackerman's box-infused writing has convinced me that the product of every pair of false dichotomies is a four-box diagram. In order to write one's way through almost any case, no matter the subject matter or the form of law involved, it seems to me, there will be choices that can accurately be classified as "narrow" or "broad" In what we call "partisanship," commentary divides legal and political positions into "liberal" and "conservtive," labels that are then applied also to people. This, in turn, results from either "broad" or "narrow" applications of these labels.

Does the use of this analytical framework explain either how decisions are made or how they should be made, to take up Felix Cohen's two cardinal inquiries? If the number of decisions is limited to two, perhaps. If we ask how liberty interests under the "due process clauses" and property interests under the takings clause are defined, in more than one case each, I'm not sure that either "degree of breadth" or "degree of liberalism" will suffice to account for some votes, let alone all of them.

So the most important question in the revision of this draft might be, "what do we want our explanations of Supreme Court decisions to help us learn?" Not "the artificial reason of the law," as Edward Coke put it, perhaps. But surely more than "who is a liberal," which—at least so far as my direct experience of the Court eztends—is just not that powerful a conclusion. If we drop that particular dichotomy altogether for a moment what else might we stand to learn?

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r3 - 01 Jun 2022 - 05:58:08 - ThomasVance
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