Rosen, Ideology, and Rosen’s Ideology

Jack noted Jeffrey Rosen’s NYT Magazine article, ” Supreme Court, Inc. ”   Reading it this evening, I noticed a rather curious line:

Ever since the Reagan administration, there had been a divide on the right wing of the court between pragmatic free-market conservatives, who tended to favor business interests, and ideological states-rights conservatives.

This strikes me as a pretty good example of what goes wrong when Rosen tries to force-fit his ideologues-pragmatists view of conservative jurisprudence where it really doesn’t work. 

Here, he arbitrarily labels “free-market conservatives” as the “pragmatists” while “states-rights conservatives” are the “ideologues.” He offers no justification for those labels, and, indeed, you could just as easily reverse the labels: After all, Justice Holmes famously criticized free-market ideologues on the early-20th-century court , and Justice Brandeis’ description of the role of states as our Republic’s “laborator[ies]” was, of course, a pragmatic one. 

Ironically, Rosen’s own error on this point likely is rooted in … his ideology. So devoted to his view of Scalia and Thomas, he allowed this sort of error to creep into his analysis.