The “Most Conservative” Court in 70 Years?

Erwin Chemerinsky, Dean of the law school of the University of California at Irvine, argues that the Roberts Court is “notably more conservative” than its predecessors and the “most conservative court since the mid-1930s.”  In this forthcoming paper, I argue that Dean Chemerinsky’s claim is completely unsustainable.  Even if one accepts that one can reach a definitive conclusion about the Roberts Court after three terms, that the terms “liberal ” and “conservative” are useful descriptions of judicial doctrine, and even if one finds it meaningful to compare the ideological leanings of Courts across decades, Chemerinsky’s claim falls apart.  While the current Court is moderately more conservative than the late Rehnquist Court, it is not meaningly more conservative than the early Rehnquist Court.  Moreover, while the Court has shown moderate conservative tendencies on some issues, it remains quite liberal on others.  Indeed, it is hard to argue that a Court that produced Boumediene, Kennedy v. Louisiana, and Massachusetts v. EPA is meaningfully conservative in any sense of the word.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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