Politics & Policy

What Happened to the ‘Conservative Court’?

Lessons learned from another year of the Roberts Court.

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.

Justice Kennedy seemed to control the outcome in every close case last year, but not so much this time around. In 2006-07, Justice Kennedy sided with the majority in almost every case, and dissented only twice. This term, however, he dissented ten times, one out of every seven cases. Overall it was Chief Justice Roberts, rather than Kennedy, who was most often in the majority.

Although he dissented more often, Kennedy’s influence on the Court’s direction remains quite strong. In the Court’s highest-profile decisions, Justice Kennedy remained the swing justice and continued to control the outcome. He sided with conservatives to recognize that the Second Amendment protects an individual right “to keep and bear arms” and invalidate more campaign regulations while teaming up with the Court’s liberals and writing opinions prohibiting the death penalty for child rape and granting expansive habeas rights to foreign citizens detained in Guantanamo Bay.

The Second Amendment decision will reverberate for some time, as new legal challenges to gun control measures are filed, but it looks unlikely to provoke much political backlash. Politicians on both sides of the aisle have been quick to embrace the decision’s central holding. Justice Kennedy’s decisions on Guantanamo detainees and the death penalty for child rape, on the other hand, suggest a Court that is still on the left of the political landscape. These decisions may win plaudits from elites, and make Kennedy toasts when he visits luminaries overseas, but they are unlikely to be popular at home. Even Barack Obama suggested the Court’s death penalty decision was too liberal (though it is unlikely any Obama nominee to the Court would vote any differently).

Overall, the Supreme Court continued to embody a mildly conservative “minimalist” approach to deciding cases over the course of this past term. Most of the Court’s decisions in 2007-08 carefully considered the discrete legal questions at issue and were decided on narrow grounds. Save for the expansive Kennedy opinions noted above, there were no sweeping changes or legal revolutions, and few decisions that were major surprises. Even the Court’s gun-rights holding was quite restrained.

Confirming Chief Justice John Roberts and Associate Justice Samuel Alito has not produced a conservative “revolution,” nor what Linda Greenhouse called the “Court that conservatives had long yearned for and that liberals feared.” Instead, we have a Court that, in most instances, is quite modest and mainstream, more committed to deciding narrow legal questions than making profound policy pronouncements. It is a Court that is progressively more judicial than political, and that’s the kind of court we should want and expect.

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

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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