What Happened to the ‘Conservative Court’?
Lessons learned from another year of the Roberts Court.


Jonathan H. Adler

This time one year ago legal commentators proclaimed a new conservative era had dawned on the Supreme Court. According to this narrative, a “phalanx” of five conservative justices was launching a “counter-revolution” to imprint a right-wing ideology on the Court over the vocal objections of the Court’s four liberal justices. The result, according to Linda Greenhouse of the New York Times was a “spectacularly divided” Supreme Court yielding decisions conservatives should cheer.

The just-concluded Supreme Court term did not hew to the script. During the 2007-08 term, the Court was neither particularly conservative nor starkly divided. Approximately one third of the Court’s decisions were decided by a 5-4 vote during 2006-07. In 2007-08, however, the Court split 5-4 only half as often, as a percentage of the Court’s docket. Moreover, only a handful of these decisions yielded ideologically predictable divisions. In cases concerning criminal sentencing, money laundering, age discrimination, and federal sovereign immunity, the justices split 5-4, but did not divide into “liberal” and “conservative” camps.

More often than not, cases were resolved by large majorities, even in cases where more division or discord was predicted. Seven justices voted to reject challenges to the constitutionality of lethal injection and the PROTECT Act, limiting virtual child pornography on the Internet, while six justice majorities upheld Indiana’s voter-ID requirement and rejected the president’s claimed authority to force state courts to abide by a decision of the International Court of Justice. The Court’s big preemption and dormant commerce clause cases also showed substantial agreement among the justices, and Justice Souter joined with the more conservative justices to limit the punitive damages owed by Exxon for the 1989 Valdez spill.

As I noted a year ago, one reason the Court may appear more or less “conservative” or “liberal” in any given term is a function of the docket. The Court hears far fewer cases than a decade ago. As a consequence, the line up of cases in any given year can provide an unrepresentative picture of the Court as a whole, particularly given the size of the Court’s docket. So while the 2006-07 term may have seemed particularly contentious, particularly at the end, commentators erred in predicting it was a portent of things to come.