Yesterday’s New York Times carries a long article by Adam Liptak titled “Court Under Roberts Is Most Conservative in Decades.” As the mock title of this post is meant to illustrate, I don’t think that the proposition set forth in the article’s title is very meaningful. And although the article itself has more nuance than the title—it acknowledges, for example, that the “rightward shift is modest” and that “the court’s decisions are often closely aligned with or more liberal than public opinion”—its overall effect is likely to mislead the reader.
Some observations:
1. The Supreme Court, with its eight current members and the prospective addition of Elena Kagan, will be no more “conservative” (in crude political terms) than Justice Kennedy is. Consider Kennedy’s opinions and positions on abortion (Planned Parenthood v. Casey), gay rights (Romer v. Evans and Lawrence v. Texas), the Establishment Clause (Lee v. Weisman), the death penalty (Roper v. Simmons, Kennedy v. Louisiana), national security (Boumediene v. Bush, Hamdan v. Rumsfeld, Rasul v. Bush), and the general use of contemporary foreign law to redefine the meaning of provisions of the Constitution (Roper, Kennedy, and Lawrence). Consider also, for example, that Ted Olson’s entire litigation strategy in the anti-Proposition 8 case in California is premised on Olson’s very plausible conviction that Kennedy will vote to invent a federal constitutional right to same-sex marriage. I simply don’t see how anyone can seriously regard Kennedy as generally conservative. Neither will the Supreme Court be so long as Kennedy is at its center.
I of course don’t dispute that Kennedy has, on a range of matters, provided the fifth vote for holdings that are frequently described as conservative. But whether it’s adopting the ACLU’s robust reading of First Amendment speech protections (as in Citizens United) or embracing the proposition that the government must generally be colorblind (as in the 2007 Seattle and Louisville schools cases involving racial-balancing plans) or deference to the federal partial-birth abortion law enacted with strong bipartisan support in Congress, it’s difficult to see what is particularly conservative (again, in political terms) about so many of the rulings so frequently described as such.
Given Kennedy’s central role, I don’t see why Liptak asserts that the Roberts Court “is likely to allow a greater role for religion in public life” (cf. Lee v. Weisman) or that “[a]bortion rights are likely to be curtailed” (what further room beyond upholding the congressional ban on partial-birth abortion does Kennedy’s position in Planned Parenthood v. Casey provide?)
2. More generally, I think that it’s far from clear that Chief Justice Roberts “is settling in for what is likely to be a very long tenure at the head of a court that seems to be entering a period of stability.” Both Justice Scalia and Justice Kennedy are 74, and I wouldn’t offer even odds that both will be on the Court a decade from now.
If President Obama has the opportunity to replace either, the Court will swing wildly to the Left. That’s the real threat that Americans should be concerned about.
3. As I’ve previously explained, at most the Roberts Court has taken a small step to the right—and towards the center. I am not contending that the Court is walking in opposite directions. Rather, after decades of liberal judicial activism on so many issues, the Court’s starting position remains decidedly on the left. (Again, I think that the title of this post illustrates the point.)
Liptak reports that political-science data shows that the Roberts Court “has staked out territory to the right of the two conservative courts that immediately preceded it.” He’s referring to the so-called Burger Court and the so-called Rehnquist Court. But unless one is blinded by the convention of identifying an era of the Court by the name of the Chief Justice, there is little reason to regard either the “Burger Court” (e.g., Roe v. Wade) or the “Rehnquist Court” (see most of the Kennedy cases above) as generally conservative. Neither certainly made much headway in turning back the excesses of the Warren Court, and each instead added to those excesses.
4. As Liptak acknowledges, the ideological coding of cases that political scientists used to generate the data he highlights is “a blunt instrument.” For example, that coding would apparently treat identically, as “conservative,” both the position that the Constitution leaves abortion policy to the political processes and the position that the Constitution forbids permissive abortion laws. (This essay of mine highlights the difference between those two positions.)
Perhaps I’m mistaken, but I gather that the basis on which the political scientists claim that Justice Alito is the “third-most conservative justice to serve on the court since 1937” is limited to how he has voted on the menu of cases he has faced, versus how other justices voted on the very different menu of cases they faced. That approach would seem worse than blunt. If, for example, there’s no reason to believe that Justice Robert Jackson or Justice Hugo Black would have believed that the Constitution prohibits the death penalty for the crime of raping a child, why does Alito’s conservative score get an upward bump over theirs merely because he was on the Court for (and in dissent in) Kennedy v. Louisiana? In other words, the ideological case count would seem particularly ill-suited to comparing justices from different eras.
5. Liptak repeats, and largely credits, Justice Stevens’s claim that (as Liptak summarizes it) “every one of the 11 justices who had joined the court since 1975, including himself, was more conservative than his or her predecessor, with the possible exceptions of Justices Sotomayor and Ruth Bader Ginsburg.” But this claim is badly flawed.
For starters, forget the “possible” exception of Ginsburg: Ginsburg is clearly more liberal than her predecessor Byron White (dissenter in Roe and author of the majority opinion in Bowers v. Hardwick) on a broad range of issues.
It’s far from clear that Kennedy is overall more conservative than Justice Powell was. What’s the evidence? Here’s some contrary evidence: On homosexual sodomy, Powell joined the Court’s 1986 ruling in Bowers v. Hardwick, which Kennedy’s 2003 opinion in Lawrence v. Texas overruled. (Yes, I know that Powell was later quoted as regretting his vote, but we’re comparing actual records.)
Was O’Connor really more conservative than Potter Stewart, who dissented from Griswold v. Connecticut and from the Court’s 1962 school-prayer ruling in Engel v. Vitale?
As Liptak notes, the political-science data so far indicates that Chief Justice Roberts is “slightly more liberal” than Rehnquist.
Further, it’s difficult to see how the differences between, say, Stevens and Douglas or Brennan and Souter ever had any impact on the outcome of a particular case.
6. You can be sure that the Left will use Liptak’s article and the political-science data to continue its attack on the Roberts Court. But the American people have been hearing for some 25 years about the supposed conservative threat that the Supreme Court poses. As Liptak notes, public opinion polls show that more Americans think that the Court is too liberal than think that it is too conservative. Those of us who hope that the current Court will some day genuinely deserve to be called the Roberts Court need to continue to highlight the reality and ongoing threat of liberal justices who invent rights that aren’t in the Constitution and who ignore rights, and limits on governmental power, that are.
