Bench Memos

What’s ‘Conservative’ about the ‘Roberts Court’?

The above is the title of my part of a panel presentation this next week, Thursday, November 12, at the Federalist Society’s National Lawyers’ Convention in Washington, D.C.  (Mayflower Hotel.)  The convention itself has the theme “The Role of Congress.”  The panel of which I will be a part is sponsored by the Litigation Practice Group, and runs from Noon to 2:00 PM, addressed to the theme “Ten Years of the Roberts Court.”  

To promote the upcoming conference, the Federalist Society invited participants to blog (on the Federalist Society website) with previews of the issues they will be discussing.  Here is a link to my posting on the topic: What’s “Conservative” about the Roberts Court?   

My thesis is that the personnel changes on the Supreme Court over the past ten years — marked from the date of the appointment of John Roberts as Chief Justice, ten years ago this September — have not produced a marked ideological shift on the Court.  The substitution of Roberts for William H. Rehnquist is the substitution of one traditional, restrained judicial conservative for another.  The substitution of Samuel Alito for Sandra Day O’Connor is the most pronounced change, bringing in a more reliably conservative jurist to replace a more inconstant, unpredictable, intermittent, not-terrible-principled selective one.  President Obama’s two appointees substituted liberal-activist jurists (of various stripes) for liberal-activist jurists (Sotomayor for Souter; Kagan for Stevens), producing certain differences but no great ideological change.

As I put it in the Federalist Society post:  ”So the net change on the Court?  A conservative Chief replaced a conservative Chief.  Two liberals have replaced two liberals.  And Alito, a solid conservative, replaced O’Connor, a liquid conservative (and occasionally a gaseous one).  The liberal bloc of four remained the liberal bloc of four.  The conservative group of three gained a fourth.  And the “swing” group of two — O’Connor and Justice Anthony Kennedy — who sometimes voted with the conservatives to form a narrow majority of five, and sometimes voted (one or both of them) with the liberals, became a Lone Swinger of One: Justice Kennedy.”

 I then conclude that the so-called “Roberts Court” has been more conservative than the Rehnquist Court “only when Alito’s vote has been different from what O’Connor’s would have been, and where Kennedy was already with the conservatives in the first place on that particular issue.”  And those situations can best be grouped into two categories:  ”few” and “far between.”   I will discuss the few conservative-direction changes and how far between major left-liberal, anti-constitutional landmarks they have been, at the convention Thursday.  

Read more here.  

Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.

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