Politics & Policy

Judicial Bogeymen

To paint Sotomayor as a moderate, the Left has imagined a right-wing Roberts Court.

In an effort to position Judge Sonia Sotomayor as a moderate or centrist, Senate Democrats are trying to paint the current Supreme Court as radically right-wing. Time and again in the opening session of Judge Sotomayor’s confirmation hearings, senators decried the “activism” and conservative bias of the current Supreme Court, and of Chief Justice John Roberts in particular.

Sen. Chuck Schumer (D., N.Y.) set the tone, suggesting that Chief Justice Roberts “has tried to change the rules,” Whereas Judge Sotomayor has been an objective umpire. According to Schumer, “any objective review of Judge Sotomayor’s record on the Second Circuit leaves no doubt that she has simply called balls and strikes for 17 years, far more closely than Chief Justice Roberts has during his four years on the Supreme Court.”

#ad#Senator Schumer was not alone. Sen. Russ Feingold (D., Wis.) charged that “the conservative majority on the Supreme Court can fairly be described as ‘activist’ in their disregard for precedent and their willingness to ignore or override the intent of Congress.” Sen. Richard Durbin (D., Ill.) echoed this complaint, accusing the Roberts Court of issuing “decision after decision in recent years that represent a triumph of ideology over common sense and concern for ordinary Americans.” Sen. Al Franken (D., Minn.), the Judiciary Committee’s newest member, expressed his fear that “judicial activism is on the rise,” and he did not mean it as a joke.

The claims made by Senate Democrats echo charges made in recent press accounts and academic commentary. When the most recent Supreme Court term ended, numerous commentators proclaimed that the court had made a “move to the right.” A rash of stories made the same claim after the 2006–07 term, warning of a conservative “counterrevolution” led by a “phalanx” of right-wing judges. Yet as I explained at the time, such charges were premature, and a year later many of the same reporters and commentators wondered where the conservative court had gone.

In the Sotomayor hearings, Sen. Sheldon Whitehouse (D., R.I.) charged that “The Roberts Court has not kept the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.” According to Whitehouse, the Roberts Court has a “striking record” of “overturning congressional statutes.” In fact, in the last four years the liberals on the court have gone against Congress more often than the conservatives. Not only did the court reject the combined judgment of the executive and legislative branches in Boumediene v. Bush, but the liberal justices have also sought to overturn the federal ban on partial-birth abortion that passed both houses of Congress by wide margins. Just this past term, the Roberts Court notably declined to consider constitutional challenges to federal civil-rights laws, resolving the cases on narrow statutory grounds.

Sen. Herb Kohl (D., Wis.) said that on the issue of abortion, despite Roberts and Alito’s assurances that they would regard precedent, “‘Super precedent’ went out the window and women lost a fundamental constitutional protection that had existed for 36 years” as the court voted 5 to 4 in Gonzales v. Carhart “to overturn the key holding in Casey.” This case was the first time the Supreme Court had upheld a ban on a specific abortion procedure (partial-birth), but it did not mark a dramatic change in the law. While Carhart all but overturned the court’s 2000 decision invalidating Nebraska’s partial-birth abortion ban, it upheld and applied the reigning standard governing abortion statutes: the “undue burden” test established in Planned Parenthood v. Casey. Indeed, the opinion was written by Justice Kennedy, one of the three judges who wrote the Casey opinion.

Some Senate Democrats have also complained that John Roberts is far more conservative than anyone imagined when he was nominated. Jeffrey Toobin also made this suggestion in his recent New Yorker profile of the chief justice, cited favorably by Senator Whitehouse. Such claims are silly. Senate Democrats blocked Roberts’s confirmation to the U.S. Court of Appeals for the D.C. Circuit in 1992 and stalled him again in 2001 precisely because they believed he would be a conservative judge. For the same reason, 22 senators voted against his confirmation (including some who now claim they were misled).

#page#Academic commentators have made similarly overwrought claims that the Roberts Court is particularly conservative. For one, Dean Erwin Chemerinsky of the UC Irvine school of law has written that the Roberts Court “is the most conservative court since the mid-1930s.” This charge would be laughable were it not made by such a well-respected academic. To say that Dean Chemerinsky overstates his case is an understatement. (I responded to Chemerinsky at length here.)

There have certainly been some Roberts Court decisions that could be characterized as “conservative,” but this is not a particularly conservative court. Even assuming we could reach a definitive judgment about the Roberts Court after only a few terms, there is little support for Chemerinsky’s claim that it is the “most conservative” in seven decades, however “conservative” is defined. There have been some conservative rulings, to be sure, but also many that are anything but. There is nothing conservative about the court’s far-reaching decisions invalidating the death penalty for child rape (Kennedy v. Louisiana), constraining the political branches’ ability to conduct the war on terror (Boumediene v. Bush), or approving regulation of greenhouse gases under the Clean Air Act (Massachusetts v. EPA).

#ad#The dominant feature of the Roberts Court is a judicial minimalism that favors narrow holdings consistent with precedent. Where the court departs from this slightly conservative minimalism, it is usually because of Justice Kennedy, who will often join the more liberal judges in embracing sweeping rulings. His idiosyncratic jurisprudence controls the outcome (and the tenor) of many decisions. The end result is a moderately conservative court, but one that is almost as likely to lurch left as it is to inch to the right. It is also a court, as Stuart Taylor has observed, which on contentious issues is at the center, or slightly to the left, of public opinion.

If, as expected, Sonia Sotomayor takes her seat on the bench, she will join a court that has yet to address many contentious issues — and that will be forced to contend with difficult cases in the coming term. If her past record is any guide, she will fit comfortably on the court’s liberal wing. The Roberts Court is not particularly conservative now, and it won’t be any more, or less, once she is confirmed.

NRO 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 is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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