Bench Memos

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A Small Step to the Right … and to the Center


If crude political shorthands must be employed, then the Supreme Court’s just-completed term is best summarized as a small step towards 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 position remains decidedly on the left.  Thus, even if the Roberts Court were to take big strides to the right in future terms (a prospect that would require further improvements to the Court’s composition and rather more boldness than the new justices have so far shown), it would still merely be moving towards the center. 

The abortion issue illustrates my point.  As I explain in this essay, the Scalia/Thomas position that the Constitution does not speak to the question of abortion is the centrist, moderate, substantively neutral (as well as correct) position. 

Yesterday’s NRO house editorial accurately describes how limited the Court’s progress was this past term.  Unfortunately, the major media coverage has been remarkably hyperbolic and distorted.  A few examples:  

I addressed here Linda Greenhouse’s fanciful assertion in the New York Times that we now have “the Supreme Court that conservatives had long yearned for.” 


Patterico, in a post titled David Savage:  Drama Queen, thoroughly critiques the Los Angeles Times’s “melodrama”.  The LA Times article includes the ridiculous claim that President Bush’s “selection of [Chief Justice Roberts and Justice Alito] appears to have cemented his legacy of a long-term conservative majority on the high court.”  We don’t even have a “conservative majority” now, and any prospect of establishing one requires election of a strong president in 2008.


Yesterday’s article by Jess Bravin in the Wall Street Journal declares in its opening sentence that “the Supreme Court this term delivered a score of decisions conservatives have long yearned for, upholding abortion restrictions, silencing insubordinate students and abolishing school-integration programs.”  The article as a whole is a serious look at the Court’s term, but its opening sentence is wildly distorted.  Let’s break it down:


            — A “score” of decisions?  “Score” of course means “twenty” or “around twenty”—not several.


            — “upholding abortion restrictions”?  The Court majority, applying the framework of Roe and Casey, ruled that a single law, the federal ban on partial-birth abortions, is facially constitutional.  As I explain here, this ruling restores some sanity to the standard for facial challenges to abortion regulations, but it in no way signals that a majority of the Court is ready to abandon its judicial power grab on abortion and to uphold any significant restrictions on abortion.


            — “silencing insubordinate students”?  Since when have conservatives been “yearn[ing]” to limit the speech rights of public-school students?  On the contrary, many conservative public-interest groups have been at the forefront of defending disfavored student speech—which is hardly surprising given who runs the public schools.  Moreover, no one who reads Justice Alito’s concurrence in Morse v. Frederick could reasonably conclude that the Court has given schools significant new leeway to “silenc[e] insubordinate students”.


            — “abolishing school-integration programs”?  This shorthand obscures the fact that all justices agree that race-conscious measures are appropriate as a remedy for past discrimination.  In light of Justice Kennedy’s separate concurrence, it also misstates the holding of the Seattle and Louisville cases.  The term “racial-balancing plans” would also seem more informative.

Tags: Whelan


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