Eugene Volokh takes Dahlia Lithwick to task for accusing Republican Supreme Court justices of hypocrisy when in fact they are merely applying their (” conservative “) judicial philosophies in a consistent manner. Dahlia thinks that conservatives believe that courts should leave policy to legislatures, respect precedent, and refrain from inventing constitutional rights, and that the Republican Supreme Court justices do none of these things. Heller might not be the best case for her argument, especially because it has not yet been decided; but if it is decided as everyone expects it will be (namely, conservatives on one side, liberals on the other), it is not the worst example that she could have come up with. (She says similar unflattering things about the liberals on the Court.)
The problem, as Volokh points out, is that it is hard to show that any of the existing Supreme Court justices are being hypocritical. They have their particular judicial philosophies, and are arguably acting consistently with them. Dahlia’s hypocrisy charge will nevertheless ring true for some people. Correctly read, I think, she is not so much accusing any particular justice of hypocrisy; rather, she is accusing a composite of conservatives of hypocrisy–those conservatives who argued, back when liberals ran the Supreme Court, that justices should try to avoid striking down statutes, and who now, with a conservative court doing the same thing, are egging it on.
Conservative thinking about courts has changed. At one time, conservatives criticized the Court for aggressively striking down laws; now conservatives seem less concerned about this behavior. (I am simplifying: there are exceptions in both groups.) Because the time-one conservatives said the Court was doing politics, and the time-two conservatives deny that they have a political agenda for the courts, something, vaguely, seems hypocritical. (A mirror-image argument is being made about liberals who have begun arguing for judicial restraint.) But no particular individual is necessarily hypocritical. The first group has faded into the background, and the second group has come to the forefront. With the change in the personnel of the courts, there is more political demand for the ideas of the second group than for the ideas of the first. No individual is hypocritical, but if you thought of the “conservative movement” as a living, breathing person, then you could accuse that person of hypocrisy. Unfortunately, there is no such composite person. Dahlia commits the “fallacy of division,” attributing to the members of a group motives that would better describe the group as a whole, with the added twist that the group is inappropriately anthropomorphized.
One can see the problem more clearly by focusing on how people are chosen for the Court. Presidents want to appoint Supreme Court justices who will decide cases consistently with the presidents’ political agendas, but they can’t very well ask their appointees to do politics. The solution is to find and appoint people who sincerely hold judicial philosophies that are likely to generate the political outcomes that the president values. It isn’t fair to call these appointees hypocrites; they are sincere (as far as we can tell). Nor does it seem fair to call the presidents hypocrites, though they are less than straightforward when they claim that they care about the judicial philosophies rather than the politics of appointees (they care about the former because they care about the latter). Politicians do politics, so it would be strange to call them hypocrites for advancing their political agendas in the courts. So voila , we have a hypocritical institution–the Supreme Court, which claims to do law, and not to do politics, but does both–even though it may well be composed of, and by, people who are not hypocritical at all. How do we know that the Supreme Court is hypocritical? Because it holds itself out as an impartial institution that decides the law only, but makes decisions that a twelve-year old could tie to the politics of its members–as Heller seems to make (or will make) painfully clear.
You can call an institution hypocritical until you’re blue in its face, but it’s not going to change its behavior. It’s just an abstraction, after all. The question is whether one can live with the institution as it is, or can figure out some way to make it better. Calling the justices hypocrites won’t work because they are not hypocrites. Telling them–or at least a wavering swing vote–that they risk damaging the reputation of that institution, and hence their means for exerting influence, might.