In a forthcoming essay in the Wayne Law Review, "The Roberts Court at Age Three," Dean Erwin Chemerinsky makes the fantastic claim that the Roberts Court "is the most conservative Court since the mid-1930s." In the paper, he explains what he means:
What does it mean to say that the Court is more conservative than its predecessor Courts, the Rehnquist, Burger, and Warren Courts? It is notably more conservative on the issues that in our society today are often the litmus tests for ideology: abortion and race. I also believe that it will be much more conservative on issues of separation of church and state, but they have not yet been presented to the Roberts Court. Also, it is a Court that, overall, is very pro-business. The one area where the Roberts Court has not been conservative is in its rulings against the Bush administration's actions as to the Guantanamo detainees. But this is because Justice Kennedy has joined Justices Stevens, Souter, Ginsburg, and Breyer in these cases.I believe Chemerinsky is wrong in nearly every particular. The Court's alleged rightward shift resulting from the confirmations of Chief Justice Roberts and Justice Alito has been greatly overstated, as decisions like Boumediene, Kennedy v. Louisiana, and Massachusetts v. EPA make clear. Even the claim that the Court is particularly "pro-business" is problematic, as we've discussed on this blog before.
The editors of the Wayne Law Review asked me (and others) to respond to Chemerinsky's essay. My contribution, "Getting the Roberts Court Right: A Response to Chemerinsky" is now on SSRN. While I think Chemerinsky makes some interesting observations, as in his discussion of the Court's shrunken docket and the role of Justice Kennedy, his "most conservative" claim is completely unsustainable. The Roberts Court is moderately more conservative than some of its recent predecessors on some issues, but it remains quite "liberal" on others. Particularly because Justice Kennedy is the swing vote on so-many ideologically charged cases, the Court's conservatism is quite inconsistent. I further note that any assessment of the Roberts Court, at this point, is necessarily tentative, as the current roster of justices has not yet sat together for even three full terms.