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How Conservative Is this Court?
Chief Justice Roberts and Justice Alito make a difference, but for now it's the Kennedy Court.


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Jonathan H. Adler

It was perhaps inevitable that Linda Greenhouse of the New York Times would proclaim the Supreme Court has become the “Court that conservatives had long yearned for and that liberals feared.” The replacement of Justice Sandra Day O’Connor, a moderate and increasingly inconsistent pragmatist justice, with conservative minimalist Samuel Alito ensured a modest change across many areas of legal doctrine. Yet it is an exaggeration to report a “steady and well-documented turn to the right” during the 2006-07 term, as did the Washington Post in an end-of-term review.

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The replacement of Justice O’Connor with Justice Alito has shifted the Supreme Court slightly to the right, but there is no conservative legal revolution in the offing. If anything, the pattern of the Court’s decisions somewhat reflects Justice Kennedy’s somewhat conservative jurisprudence — moderately conservative and generally resistant to dramatic shifts in established doctrine. On many issues, Kennedy is in line with the minimalist approach of the chief justice and Justice Alito, yet on many others he is willing to be significantly more aggressive and depart from conservative principles. The swing justice has a soft spot for sweeping moral arguments, such as claims about personal autonomy or the nature of deliberative democracy

Some feign surprise at the voting pattern of the Court’s two newest justices, Chief Justice Roberts and Justice Alito. Yet both justices have performed as advertised. President Bush promised Supreme Court nominations in the mold of Justices Scalia and Thomas, and there was never much doubt that Roberts and Alito would join the conservative side of the court. They are both “conservative minimalists”; they read legal texts fairly but narrowly, resist the creation or recognition of new legal rights, show respect for precedent, and avoid announcing legal rules broader than necessary to decide a given case. If anything, some conservatives may think President Bush over-promised, as Roberts and Alito are more reluctant to reverse prior cases than either Scalia and Thomas. Indeed, Alito and Roberts are less prone to overturn prior precedent than any of their colleagues on the Court.

The two newest justices have undoubtedly had an impact, however. Both Bush nominees bring powerful intellects and strong principles to the Court. Chief Justice Roberts has much in common with his mentor, the late Chief Justice William Rehnquist, but Justice Alito is both more conservative and consistent than was Justice O’Connor. Nonetheless, the change has been anything but revolutionary. Most of the Warren and Burger Court precedents that most stoke conservative ire remain on the books.

In many respects, this year saw the emergence of the “Kennedy Court,” with all that implies. As the swing justice, Justice Kennedy was able to dictate the outcome in many cases. He voted with the majority in every one of this term’s 5-4 decisions, even those that were not decided along ideological lines. But even when he did not cast the deciding vote, Justice Kennedy was almost always in the majority. The Court decided 68 cases after oral argument this term, and Justice Kennedy dissented only twice, according to end-of-term statistics compiled by the folks at SCOTUSBlog. Chief Justice Roberts, by comparison, dissented eight times, and Justice Alito ten, whereas Justices Thomas and Souter each had 16 dissents. Justice Stevens was the most frequent dissenter, voting with the minority 26 times.

This term’s docket included many cases in which Justice Kennedy joined the four more conservative justices in many high profile cases, but a single term does not produce a representative sample. A different mix of cases would likely produce quite different results. On questions from sexual privacy to capital punishment to executive authority in the war on terror, Justice Kennedy often joins the more liberal members of the Court. On still other issues, including federal preemption and state regulatory authority over interstate commerce, the Court is closely divided, but not on traditional ideological lines.

Justice Kennedy is the least likely member of the Court to uphold government restrictions on speech. Thus, he joined Justices Scalia and Thomas in urging the Court to overturn portions of the Court’s 2003 decision in McConnell v. FEC and void federal limits on political advertising adopted as part of the McCain-Feingold campaign finance reforms, rejecting the incremental approach adopted by Chief Justice Roberts that would have preserved the recent precedent. He also joined Justice Alito’s concurrence in the “Bong hits 4 Jesus” case, to ensure the Court’s ruling would not permit limits on political speech by students.

If Roberts and Alito are consistent minimalists, Justice Kennedy has a “maximalist” streak. Kennedy joined Justice Stevens’ opinion for the Court in Massachusetts v. EPA, effectively ordering the Environmental Protection Agency to regulate greenhouse gas emissions from motor vehicles. This decision could have profound implications, particularly for the law of “standing.” It invented a new doctrine of “special solicitude” for state attorneys general who wish to sue the federal government. He also wrote the majority opinion in Leegin Creative Leather Products v. Psks, Inc., overturning a decades-old antitrust precedent, and another in Panetti v. Quarterman adopting an innovative and expansive interpretation of federal law allowing convicted criminal defendants to file additional habeas corpus petitions.

Many commentators suggest that there was an unusual level of rancor and division in the Supreme Court this year. Simon Lazarus complained of “an unprecedented avalanche of 5-4 end-of-term Supreme Court decisions,” in The American Prospect and the Washington Post editorialized that the Court “seemed more fractured than ever.” Such claims, like the proclamations of a conservative ascendancy, are overstated.

Only one-in-four decisions was unanimous, and one-in-three was decided 5-4. This is hardly an unprecedented level of division, however. The level of unanimity was even lower during the 2004-05 session. That term the number of 5-4 decisions also reached 30 percent (as it did in the 2001-02 session). If anything was unprecedented it was the unusually high percentage of unanimous rulings (45 percent), and low number of 5-4 decisions (13 percent) during Chief Justice Roberts’s first term that inflated expectations. The 2005-06 unanimous rulings in cases challenging abortion restrictions and the Solomon Amendment were more unusual than the split decisions of the term just past.

This is not to deny the very real doctrinal divisions on the Court. The justices are closely split on many issues, ranging from criminal procedure and federalism to race and the status of unenumerated rights. SCOTUSBlog’s analysis of the “rate of dissension” — a measure of the number of dissents per case — found the 2006-07 term the most divided in recent years, barely edging out the 2001-02 term, 1.82 dissents per case to 1.81. This and other measures of the Court’s may be magnified by the Court’s ever-shrinking docket, however. Where once the High Court heard 100 cases a term, the justices only accepted 72 for 2006-07. As the Court grants fewer cases, those that remain on the docket may be more difficult, contentious, and closely fought on the margin. The oral statements from Justices Ginsburg and Breyer delivering dissents in high-profile cases may have been unusual, but they were decidedly mild compared to some of the fiery statements from prior years, as when the Court handed down its decisions in two abortion-related cases, Stenberg v. Carhart and Colorado v. Hill.

Last Friday, after the term ended, the Court agreed to hear another case concerning the legal rights of Guantanamo Bay detainees in the 2007-08 term. This was unusual because it required the Court to reverse course, granting rehearing of a petition the Court had already denied earlier this year. This means that at least five justices were willing to hear the case — as opposed to the usual four. It may also indicate that five justices are skeptical of the legal the Bush administration’s legal arguments. If so, this is another sign that reports of a conservative judicial revolution are a bit premature, and that this remains a Court worth watching.

— NRO Contributing editor Jonathan H. Adler is professor of law and director of the Center for Business Law & Regulation at Case Western Reserve University School of Law.



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