In its last term, the Supreme Court took tiny steps toward most conservatives’ understanding of what the role of judges in our republic should be. The reaction from liberals has been hysterical. E. J. Dionne Jr. said that the term had proved that Chief Justice John Roberts and Justice Samuel Alito are “activist conservatives intent on leading a judicial counterrevolution” (and that should President Bush nominate another justice in their mold, Senate Democrats should refuse even to hold hearings). Linda Greenhouse reported, “It was the Supreme Court that conservatives had long yearned for and that liberals feared.”
We wish it were true, but let us have a little reality check. None of the major liberal-activist precedents of the Warren or Burger Courts has been overruled in 30 years. The Supreme Court continues to insist that the First Amendment gives it the power to regulate school administrators’ disciplinary policies, even if it is easing up on those regulations. It continues to micromanage the circumstances in which states may employ the death penalty. Its church-state jurisprudence continues to have no consistent theme other than self-aggrandizement.
The three most-criticized decisions of the Court’s last term demonstrate how exquisitely moderate its supposed conservatism is.
Last week, it restricted school systems’ ability to assign students to schools based on their race. One of Slate’s legal correspondents said that Chief Justice Roberts, who wrote the opinion, was “killing” Brown v. Board of Education. The New York Times opined that the Court’s “radical new majority” was “broadly ordering the public schools to become more segregated.” Such alarms cannot be taken seriously. Only one in 15 public-school systems use race in assigning students. It is not at all clear that their use of race does much to change the racial balance of the schools: The school systems in question did not show great effects. And thanks to Justice Kennedy, the schools will not have to abandon the use of race altogether.
The Court’s decision on campaign-finance regulation, also announced last week, was modest in scope. The Court did not strike down the McCain-Feingold law; it did not even strike down its provisions restricting advertisements against political candidates in the run-up to an election. It maintained the law’s restrictions on advertisements that explicitly advocate a politician’s reelection or defeat. It merely said that such ads really had to be explicit to run afoul of the law.
The most contentious decision of the term concerned partial-birth abortion. Under this Court’s decision, it remains impermissible for any state to prohibit abortion at any stage of pregnancy. The Court merely allowed legislatures to prohibit one method of abortion, and served notice that it would monitor whether this prohibition was applied too broadly. This ban has the support of nearly two-thirds of the American public, including many Democrats. Anyone who describes the Court’s decision as extreme reveals more about himself than about the case.
The Roberts Court’s decisions lead to slightly more conservative policy results than those of its predecessors. Its opinions also try a little bit harder to announce principles that have the character of law, rather than keeping everyone guessing about what the Court’s next edict will be. The continuities are, however, more stark than the differences.
The Court’s liberal critics are especially exercised by Justice Alito, who in a few cases voted differently than the justice he replaced, Sandra Day O’Connor. These critics say that the rule of law is eroded when the outcome of a case depends on who’s sitting on the bench. This critique comes a little late in the seasons of our experience. We don’t recall any of the legal experts who are condemning Alito having urged Ruth Bader Ginsburg to follow the example of the justice she replaced, Byron White, who dissented from the liberal constitutional agenda on abortion and gay rights.
The denunciations of Alito, like the denunciations of the Roberts Court generally, suggest that the operative principle for legal liberals is something like the Brezhnev Doctrine: What we have, we keep. If we elect a conservative president in 2008, we may hope that this doctrine will suffer the fate of its predecessor.