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Is the Supreme Court Conservative?:
Writing in the Washington Monthly, Stephen Pomper offers this assessment of the Rehnquist Court:
  To the surprise of the legal left, the Rehnquist Court has refused to overturn Roe v. Wade and has broken new ground in protecting the civil rights of homosexuals. It has endorsed some forms of affirmative action. In last Spring's highly charged enemy detainee cases, it refused to write the executive branch a blank check for wartime detention powers. And even in its hypertechnical (and therefore less controversial) federalism cases, which concern the powers of Congress over the states, the Court has feasted less aggressively on Congress' legislative authority than might have been anticipated, contenting itself to snack on bits and pieces. In retrospect, liberal anxieties (including my own—see "The Gipper's Constitution," December 1999) about how far this Court would go in implementing the Reagan revolution are looking somewhat misplaced if not, on occasion, hysterical.
I think the picture is particularly interesting if we focus only on the Court's decisions since Bush v. Gore. Terms like "liberal" and "conservative" are tricky, especially when you're talking about the judiciary. But my tentative sense is that, on balance, the Supreme Court's decisions post-Bush v. Gore have tended to have the overall effect of nudging the law slightly in a liberal direction. If you scroll down a list of all of the Court's decided cases from the last three Terms, see here, here, and here, that seems to be the overall trend.

  Do you agree? I have enabled comments. As always, civil and respectful comments only.

Greedy Clerk (mail):
I think this Supreme Court (the one that hasn't changed in the last ten years) will go down as one of the best in history (except that Bush v. Gore may forever stain its reputation). I think it has simply shown a pretty good fidelity to judicial restraint on all sides. One recent example I keep pointing out to people is Justice Stevens recent concurrence in the denial of cert in a death case where he concedes that he believes the person will go to death in violation of the Constitution, but must vote to deny cert because there was no jurisdiction (Douglas, Marshall and Brennan would have never explicitly said something like that.) Moreover, Stevens felt compelled to write something because he recognized that the State deserved an explanation for why the Court had granted a temporary stay of execution to determine if it did have jurisdiction, recognizing that the State has an interest in seeing its executions carried out. That's judicial restraint, and a damn-good example of fidelity to the rule of law (recognizing the limits on the power of the Court to declare things unconstitutional).

THe "liberals" on the Court are hardly that --- they are really moderates, none of them could even approach Brennan or Marshall on the "liberal" scale. Look at how many times the splits on very important issues have not followed the so-called 5-4 conservative-liberal split. Perhaps since 2000, the cases have tended slightly towards the liberal side, but overall, it has been a moderate court with a very cautious approach on issues presented to it. The federalism cases have really not turned out to be much. Morrison and Lopez all would agree were close to the line of how far Congress could go even under the most expansive interpretations of the Commerce Clause after the New Deal (in fact I think Souter said that oral argument), and with the exception of Thomas, none of the Justices joining those opinions showed any willingness to repudiate the post-New Deal understanding of the Commerce Clause and the scope of federal power in general.
1.5.2005 2:24pm
Crime & Federalism (mail) (www):
"Do you agree?"

No - which is why I dislike saying the Court is "liberal" or "conservative"? Is Crawford liberal? Well, it helps criminal defendants (which only "liberals" care about), but it's outcome was based on originalism (re: a "conservative" method of constitutional interpretation).

I watch 1983 and crim pro ases. Over the past ten years, the Court has made it impossible to sue the states under 1983, and difficult under federal law. Qualified immunity has nearly become absolute immunity. The police can arrest you for committing a civil infraction that does not carry jail time as its maximum penalty. Pretextual stops are okay. Etc.

So the Court has immunized the police, and more generally, the government, from liability and scrutiny. I'm not sure how a pro-state court could ever be characterized as "liberal."
1.5.2005 3:27pm
Crime & Federalism (mail) (www):
"The federalism cases have really not turned out to be much."

I disagree. The Court has eliminated Congress' ability to abrogate under Article I. And it has acted not as a JV legislature in reviewing Section 5 abrogation, but as the head coach, ensuring that Congress had a sufficient legislative record before it abrogates. (BTW, how can Scalia be a "textualist" when he joins the decisions requiring a demonstrated legislative record - i.e., materials outside the text of the law - of state evil before abrogation is proper?)

Just so you know I'm not making this stuff up (besides, who am I to say anything?), I'll refer you to Judge Noonan's Narrowing the Nations Power.
1.5.2005 3:42pm
A Blogger:
C&F writes:

"Qualified immunity has nearly become absolute immunity."

How do you explain Groh v Ramirez? Isn't that an important qualified immunity case in which the Supreme Court considerably tightened the scope of qualified immunity, ruling in favor of a plaintiff and affirming an outlier 9th Circuit decision? http://www.supremecourtus.gov/opinions/03pdf/02-811.pdf

More broadly, I don't think it works to pick just one or two areas of the court's decisions -- especially with areas where, as you note, the left vs. right dynamic can be hard to identify.
1.5.2005 4:15pm
Eric Rasmusen (mail) (www):
I don't know about the short-term, but when people say the Rehnquist Court is moderate or conservative, I look back to the Warren Court, which was very liberal. Which of the controversial Warren Court decisions has been overruled? Is the interpretation of the Constitution by the present Court more like the conservative (relatively) intpretation of 1950 or the liberal interpretation of 1970? While the rate of leftward movement of the Rehnquist Court may not have been as fast as th eWarren Court, it is definitely more liberal. Remember, under the Warren Court abortion and homosexuality could be illegal, and the exclusionary rule was just statutory interpretation. There has been a ratchet effect, and we take for granted the liberal baseline of 1970.
1.5.2005 4:26pm
Greedy Clerk (mail):
Crime and Federalism brings up some good points re the Court's Fourth Amendment decisions. There have been a bunch that have been more "conservative" in the last few years. Many of these have been unanimous or near-unanimous. Those that weren't again involved interesting splits with Souter writing that a person could be arrested for not wearing a seatbelt and O'Connor dissenting. And then Scalia writing that heat sensors are searches with Stevens leading the "conservatives" in dissent.

Their habeas decisions have been more "conservative" as well in restricting the scope of review which is mainly a result of AEDPA, but even the Court's "liberals" appear to have fully accepted the more restrictive interpretation of AEDPA that they first rejected in Williams (see eg the numerous summary reversals of the 9th).

The portion of the Court's decisions that are more "liberal" are those involving private rights of generally "law-abiding" citizens like the gay rights decisions.

As for the affirmative action decisions, I think those can just be explained as O'Connor blinking.
1.5.2005 4:34pm
RPS (mail):
Putting aside reality and focusing on perception, I think Pomper's comment about hysterics is interesting. It wasn't that long ago that I remember Howard Dean calling this Court the most conservative since Dred Scott. More reasonable minds may view his comments as political rhetoric, but I think many would agree with that general idea. The MSM has done an excellent job of painting this Court as extremely "conservative" which I usually take to mean they produce decisions that align with the conservative political agenda, i.e., Republican, not that they rely upon what would be considered conservative judicial philosophies (although the two very well may coincide). This is just me speculating but I think most members of the media writing about the Court have no clue why Scalia dissented in Lawrence, only that he ended up on the side which produced what was considered an anti-gay decision, which correlated with the politically conservative view; therefore, he is a conservative justice. Assuming the use of conservative is meant to mirror the Republican political agenda (along with the other requisite disclamiers), this Court has been pro-abortion, pro-affirmative action, and pro-gay rights. I don't think the Court should be defined by these issues any more than it should be defined by its federalism decisions, but I do think there is a large scale perception in the country that this Court has been very conservative, which I don't think is supported by what most consider to be conservative.
1.5.2005 4:41pm
Crime & Federalism (mail) (www):
A Blogger writes: "How do you explain Groh v Ramirez?"

That's easy. The text of the Constitution is clearly established law. Since the 4th has a warrant and affidavit requirement (which I can read right now by pulling out the old Cato pocket Constitution), then only an incompetent officer or one who would willfully violate rights would not realize this. I was a bit upset, by the way, that Scalia dissented. The implication of dissenting in Groh is that the text of the Constitution does not have life until the Court breaths into it.

A Blogger writes: "More broadly, I don't think it works to pick just one or two areas of the court's decisions -- especially with areas where, as you note, the left vs. right dynamic can be hard to identify."

I agree! This is why I hate the libera/conservative label. Here is what the pundits do. Oh, Tenn v. Lane came down. Let's read it. That's a case where the Court says that disabled people matter! Let's write a big headling saying, "COURT SIDES WITH DISABLED PEOPLE." Since the Court "sided" with disabled people, and liberals support the ADA, then Lane is therefore a liberal decision.

Well, no. You know and I know that Lane was about abrogation. The Court applied the infamous congruence and proportionality test to find that Title II abrogated.

But had the Court come out the other way, the decision would have been anti-disabled people, and thus "conservative."

That seems to me a poor way of looking at things. Namely, look at the outcome. If the outcome was good for the left, then it is a liberal decision (and having enough of these makes for a liberal Court). If the outcome is good for the right, well, then it's a conservative court.

Because of that, I avoid using the conservative/liberal label. Except when I'm being lazy and don't want to cite cases and language from cases to prove a point. Or when I don't want to explain something to someone who has obviously never read a case (other than the edited ones in the case books). It is, after all, much easier to say, "Damn liberals/conservatives" then it is to figure out what the cases are about.

On a related note. To avoid the liberal/conservative discussion, I usually say to the person throwing the label around, "Hmmmm....what are three recent cases that you would consider liberal? And who wrote them?"
1.5.2005 5:13pm
Some Jarhead:
Seems pretty obvious to me.

A Liberal Court would have: Upheld race-based quotas, discovered a right to sodomy, extended habeas corpus to foreign soil - stop me when I sound familar...

Let's build a Conservative Court, incorporate the Second Amendment, and take a hard look at the constitutionality of Social Security, in just the way the Chief suggested in his year-ender.
1.5.2005 5:18pm
David Innes (mail) (www):
I think it might be more accurate to say the court recently has been less radical, not less conservative or liberal.

For instance was it really being "liberal" to uphold the 6th Amendment just because radicals in the Bush administration, finding it inconvenient, sought to disregard it?

Furthermore, does one imagine that the court will become more "conservative" should those same radicals replace outgoing justices with proponents of their interpretation of that Amendment?

David Innes

(Note: Sorry about the squirrely username. Powerblogs isn't accepting my password.)
1.5.2005 6:39pm
Doug B. (mail) (www):
Blakely v. Washington is certainly the most liberal criminal justice decision to come down the pike in a while. And some paragraphs read like Justice Scalia is channeling Justice Brennen. I surmise some suggest the ecision, because it is penned by Scalia, is "really" conservative because we expect a punitive mandatory minimum backlash from Congress. But such a reaction reflects on Congress, not on the Court deciding Blakely. (After all, Miranda is thought to be liberal, despite the Congressional backlash and the reality it was truly a compromise decision.)
1.6.2005 1:13am
SupremacyClaus (mail):
The Supreme Court is proceduralist. They favor neither right nor left. They favor lawyer job creation, no matter the consequences to crime victims, babies, productive members of society.

This theory predicts a decision favoring homosexual marriage. Family law is suffering because people don't get married. They don't get married because the lawyer has made marriage untenable. Homosexuals will enrich family law with high rates of dissolution.

Scalia is not an originalist. He is a proceduralist. In Blakely, he quotes a Tory, a justifier and manager of Star Chamber proceedings. These provided an intellectual justification for the violent and protracted American Revolution. Quoting a mortal enemy of our besieged nation is not my idea of originalism.
1.6.2005 7:41am
Con (law) Man (mail):
The Court really has become more liberal in its qualified immunity jurisprudence. In 2002, in Hope v. Peltzer (I think), the Court lowered the almost insurmountable barrier created by the "clearly established right" doctrine. Before Hope, a state actor would always get qualified immunity unless an appellate court had dealt with an essentially identical fact-pattern. Now, a right can be clearly established by similar, not just basically identical, fact-patterns. As a clerk, I worked on a case in which a bunch of jerks would have had qualified immunity in the 11th Circuit pre-Hope but were made to go forward afterward.
1.6.2005 11:35am
Tom McFarland (mail):
Recent work by Adam Martin and his colleagues at Washington University (adm.wustl.edu) has attempted to estimate justice ideology using Bayesian Markov-Chain estimation. If you look at the median justice score for each term, you can see that the Court has moved in a liberal direction since Bush v. Gore, but is still on the conservative side. Technical questions abound with this type of research, but these estimates are some of the best social science has to offer.
1.6.2005 12:19pm
Richard Tipton (mail):
Along the lines of Tom McFarland's post, my own research has discerned the same phenomenon. Interestingly, not only is this court's opinions "liberalizing," but, on average, most Supreme Court courts and individual justices tend to liberalize over time. Does anyone have an explanation for why this happens?
1.6.2005 8:25pm
Gene (mail) (www):
Well, like many of the other individuals responding to your post, I also hate the "liberal v. conservative" dichtonomy. I would agree that since 2000, the Court has tried to push back a bit at the radically-charging White House and Congress. But in my estimation, the reason behind this is not a shift in overall judicial philosophy of the Court, but a pragmatic desire to curb the attempt to dramatically expand the powers of the executive branch. With Republicans in control of both the White House and Congress, the Court probably feels it is the last line of defense for the individual rights under the Constitution. This would explain not only the Guantanamo cases, but also Crawford / Blakely opinions.
1.7.2005 4:19am
Len (www):
When the party in control of both elective branches of government starts throwing around loose talk about jurisdiction-stripping and legislative "nuclear options," the Court can almost be expected to react in Darwinian self-preservation. Forget ideology - I think they're asserting independence and marking their turf.
1.7.2005 3:26pm
Joseph Hovsep (mail):
The "Renquist" court may not be as conservative as liberals fear, but Renquist as Associate and Chief Justice has been, at least in cases protecting personal liberties. He came down on the wrong (by my view) side of all the major gay rights victories (Bowers, Romer, Lawrence) as well as the decisions protecting abortion rights (Roe, Casey).
1.8.2005 10:01am