The Empty Promise of Compassionate Conservatism: A Reply to Judge Wilkinson

Article — Volume 90, Issue 1

90 Va. L. Rev. 355
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In his recent essay, Why Conservative Jurisprudence Is Compassionate, Judge J. Harvie Wilkinson defends conservative jurisprudence against a claim that he believes unfairly derogates the normative attractiveness of conservative jurisprudence—specifically that conservative jurisprudence lacks compassion. To Judge Wilkinson, conservative jurisprudence, properly understood, can “more than hold [its] own” against its liberal counterpart in the compassion debate. 

This essay responds to Judge Wilkinson’s thesis. It first articulates the arguments advanced by Judge Wilkinson in support of his thesis but then suggests that, even if his contentions hold some resonance, they still fall short of the goal of defending contemporary conservative jurisprudence as compassionate. 

To begin with, Judge Wilkinson’s arguments are essentially only negative points about the purported overuse of compassion in liberal jurisprudence; they are not positive propositions suggesting that conservatism has its own unique vision or understanding of compassion. Moreover, Judge Wilkinson’s attempt to defend conservative jurisprudence is misplaced because the conservatism he describes is not contemporary conservative jurisprudence. Rather contemporary conservative jurisprudence, in order to achieve its desired results, is marked with the exact same jurisprudential deficiencies that Judge Wilkinson condemns in liberal jurisprudence. Finally, Judge Wilkinson’s attempt to defend contemporary conservative thought against liberal attack is misdirected because the liberal/conservative dichotomy he describes is not the primary line that currently divides the conservative and liberal camps. The division is not between a jurisprudence that inappropriately responds to individual poignancies and one that relies on sharp lines and collective concerns. Rather the essential division is between a liberal jurisprudence geared to protecting the marginalized groups in society versus a conservative jurisprudence that tends to reinforce the existing powers of dominant groups. As this essay demonstrates, conservatives have taken their role in protecting entrenched interests quite seriously. They have expanded the constitutional rights of already powerful interests. They have opposed liberal attempts to increase the constitutional protections accorded marginalized groups. They have invalidated legislative attempts that would reduce the disparities between the powerful and the marginalized in the political marketplace. They have consistently resisted both constitutional and legislative attempts to increase the access of disadvantaged litigants to courts of justice. Accordingly, the essay contends that the claim that such a jurisprudence is “compassionate” is difficult to sustain.

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  Volume 90 / Issue 1  

Constitutional Decision Rules

By Mitchell N. Berman
90 Va. L. Rev. 1

The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern Doctrine

By James Weinstein
90 Va. L. Rev. 169

Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation

By Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman
90 Va. L. Rev. 301

The Empty Promise of Compassionate Conservatism: A Reply to Judge Wilkinson

By William P. Marshall
90 Va. L. Rev. 355