Mirror of Justice

With apologies to Aretha Franklin, are the evangelicals getting duped by the conservative Bush Administration's failure to honor their expectations for the Supreme Court, or is the libertarian wing of the conservative movement getting duped by evangelicals' inappropriate demands for a Supreme Court justice that comports with their instrumentalist view of law?  Over at Balkinization, Brian Tamanaha latches onto our conversation on the Miers nomination and takes it in a more provocative direction, arguing that libertarian conservatives are complaining too late about their religious conservative bedfellows' expectations of identity-politics payback via the Supreme Court nomination process:

Religious conservatives--we should stop using the euphemism "social conservative" to label groups that avowedly pursue a religious agenda--have all along been straightforward and principled in the pursuit of their goals.

Libertarian conservatives, in contrast, arguably have been less than principled in one crucial respect: they have not often enough spoken out against the efforts of their religious conservative allies to impose their religious views on all the rest of us through legal means (mandating the teaching of creationism--oops, "Intelligent Design"--in public school science classes, stalling sale of day after pills, and on and on). Securing the appointment of a fundamentalist Supreme Court Justice is just one piece of this agenda. If Mill's On Liberty serves as the libertarian bible, libertarian conservatives should long ago have taken umbrage at the core agenda of their religious allies to use the law (via legislation, administrative actions, and judges) to infuse the public sphere with religion.

I'm not a libertarian and probably don't qualify as a religious conservative (except in circles where anyone who takes religion seriously is deemed inherently conservative), but I think Tamanaha overstates things considerably in describing the chasm between the two groups.  As I see it, abortion is the central issue in religious conservatives' misgivings over the Miers nomination, and abortion is not easily dismissed as simply one component of a religious agenda.  Yes, many opponents of legalized abortion are motivated by religious convictions, but the question of who qualifies as a person subject to the law's protection is easily accessible on non-religious grounds.  Many libertarians believe that one of the few core functions of government must be the defense of life (e.g., our co-blogger Steve Bainbridge, I believe).  And while I'm quite leery of teaching Intelligent Design in schools, I'm not sure why state mandates forbidding the teaching of alternatives to evolution qualify as more libertarian than an educational market in which local schools have authority to make curricular decisions reflecting community norms.  Opposition to same-sex marriage, I'll grant, is difficult to disconnect from particular religious convictions, but for the most part, I think the view of "religious conservatives" plotting diabolically to expand government, intrude on our personal lives, and stamp out deviant secularists is a distraction.  Many of the priorities of "social conservatives" should be opposed, in my view, because they would make bad public policy on the merits, not because they emanate from some sort of cabal bent on theocracy that needs to be rooted out by their more sane libertarian partners in crime.

Rob