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Is This the "Most Conservative Court Since the Mid-1930s"?

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.

Smokey:
"Is This the "Most Conservative Court Since the Mid-1930s?"

It's only a matter of perspective.

Today, John F. Kennedy would be regarded by Democrats as a wild-eyed, dangerous right-winger, to be destroyed at any cost. Look at what the party did to Joe Lieberman.
12.1.2008 7:24am
A Berman (mail):
It is all too typical that the academic left try to pocket their ideological gains by claiming that the current issues define liberalism and conservatism.

Would courts in the 1950's have upheld Griswald? Is it likely that today's Supreme Court would overturn it?
12.1.2008 7:27am
Bruce_M (mail) (www):
"conservative court" now means something wholly different than it meant in the 1930's, so to compare the two is comparing apples and oranges. But it's certainly the most pro-religion, pro-business, anti-criminal defendant court we've had... well, maybe ever. Aside from Scalia, who pioneered the Apprendi/Booker and Crawford revolutions in siding with criminal defendants, pretty much every other case has gone pro-religion, pro-business, pro-prosecution.

That's my three-part definition of conservative court. Your's may very well differ.
12.1.2008 7:29am
ThreeOneFive (mail):
What did they do to Joe Lieberman? let him keep his positions?
12.1.2008 7:30am
Bruce_M (mail) (www):
Also, to add to what Smokey said, both Barack Obama and Hillary Clinton are ten degrees to the right of "Mr. Conservative" Barry Goldwater on every conceivable issue. Goldwater's closest contemporary is Dennis Kucinich.
12.1.2008 7:31am
PersonFromPorlock:
The current Court may be 'conservative', but only in the sense of being Right-statist rather than Left-statist.
12.1.2008 7:43am
gregH (mail):
ThreeOneFive,
They didn't let him run as a Democrat. He's only in the Sanate because he decided to run as an independent.
12.1.2008 8:04am
Sasha Volokh (mail) (www):
Chemerinsky's statement that "there are apparently liberal cases, but only because Kennedy joined the liberals" is, perhaps, revealing. I haven't read Chemerinsky's article, so I may be wrong on this, but there's a possible tension here: (1) One may want to characterize the "Roberts Court" as being characterized by its conservatives, especially the new ones who have, in fact, moved the Court somewhat to the right; but (2) in any study of a collegial body, the swing voter is the most important member (though the concept of "swing voter" may be problematic in many cases when you have multiple dimensions of policy, etc.).

In other words, putting aside questions of how to define the swing voter and assuming that Kennedy's the one: The Roberts Court is the Kennedy Court. Therefore, you can't say "there are outliers, but only because Kennedy did this..." -- Kennedy's actions are all. Therefore, as Jonathan does in this post, you have to treat Kennedy as the decider, and therefore the Court's conservatism becomes only as strong as Kennedy's own conservatism.
12.1.2008 8:16am
Brian Mac:

They didn't let him run as a Democrat. He's only in the Sanate because he decided to run as an independent.

They "didn't let him run as a Democrat" because he lost the primary. How unfair! Down with democracy!
12.1.2008 8:22am
Counterfactual:
So what is the most conservative court since the mid 1930's then? Jonathan makes a good case that the present court is only moderately conservative, but if all the others have been more liberal, then Chemerinsky is still right. The fact that Jonathan does not explictly list a court he would call more liberal is perhaps good evidence that Chemerinsky is not so wrong as this post wants to suggest.
12.1.2008 8:28am
Zed:
"Most" is a relative comparison. A court does not have to have all conservative decisions in order to be the most conservative court historically.
So citing several liberal decisions of the court is not entirely apropos. It's like pointing out that the 2003 Detroit Tigers were not the most losing team in history since 1962, because, actually, they did win some games.
12.1.2008 8:30am
JonC:
As Prof. Kerr has commented elsewhere: "The Court is always turning to the right."
12.1.2008 8:57am
Observer:
I think that one can argue that the current Court is the most conservative Court since the 1930s in the sense that the current Court moves the law of the land to the Left at a slower pace than any other Court since the mid-1930s.

But if you assess the conservativeness of the Court by the current body of jurisprudence deemed to be good law at any given time, the current Court is certainly the most liberal in history, since it decided many left-wing decisions moving the Court to the Left and did not repeal nearly as many left-wing decisions from previous decades.
12.1.2008 9:09am
Simon Dodd (mail) (www):
Prof. Adler,
Dean Chemerinsky claims that we have "the most conservative Court since the mid-1930s." In reply, your paper makes a convincing argument that the present court is not particularly conservative, but does that connect with Chemerinsky's pitch? You concede that "the Roberts Court appears moderately more conservative than its immediate predecessors"; surely, then, you must either nominate another candidate as the most conservative court since the mid-1930s, or reject the entire enterprise of comparing courts on this scale.

In other words, if this isn't the most conservative court since George Sutherland retired, which was? Your paper never gets around to saying, and it doesn't seem to reject the validity of the comparison. Doesn't a convincing reply to Chemerinsky have to carry the burden of doing one or the other?
12.1.2008 9:18am
Houston Lawyer:
I believe that Observer has it right. Moving left at a trot instead of a gallup is surely an indication of conservatism.
12.1.2008 9:23am
JosephSlater (mail):
Houston Lawyer:

You and Observer are arguing against a claim E.C. didn't make. You want to discuss whether the court is conservative by your particular lights.

The question is whether the court is more or less conservative than other courts since the 1930s. Put me down as another one curious as to which court that might have been.
12.1.2008 9:29am
DavidBernstein (mail):
It seems to me that this IS the most conservative Court since the 1930s, but the false implication is that the Court is similar to the 1930s Court. The Roberts Court is far, far, closer to all of its predecessors than it is to the early Hughes Court. For that matter, the Roberts Court is far closer to the Warren Court than Justice Brandeis, perhaps the most liberal members of the early Hughes Court, would have been.
12.1.2008 9:38am
DiverDan (mail):
Let's just face the truth - Chemerinsky's article was not academic scholarship written for the purpose of accurately describing the current Court, it was a piece of political propaganda intended to justify the appointment of very liberal justices if (when) Obama gets the chance. The fact that the Wayne Law Review would publish such a piece speaks volumes about its credibility (or lack thereof).
12.1.2008 9:40am
John (mail):
Everything is the same as the Rehnquist court, except Roberts has replaced Rehnquist and Alito has replaced O'Connor. I don't see the Roberts-for-Rehnquist switch making a more conservative court, but Alito-for-O'Connor probably did. So the claim of a at least a slightly more conservative court seems quite plausible.
12.1.2008 9:58am
Simon Dodd (mail) (www):
John: to the extent that judicial enforcement of federalism is primarily a conservative rather than liberal value, and to the extent that neither Roberts nor Alito seem quite as receptive to that project as their respective predecessors, I suppose one could make the argument that the turnover in personnel has made the court less conservative in that area.
12.1.2008 10:03am
flyerhawk:
As has been mentioned by several people if this is not the most conservative court since the pre-FDR era, then what court was?

And we should also be mindful that a court should be judged relative to their times.

Of course any court today would be more liberal than a court from a hundred years ago based on absolute judgments. Of course society as a whole is far more liberal today than a hundred years ago.

Is there any chance that a court today would rule the same as in Gobitas or Korematsu?

It also seems unreasonable to claim that a court is not conservative, or liberal, because you can point to a small handful of cases in which the ruling belies the claim.
12.1.2008 10:44am
Guest101:
"Today, John F. Kennedy would be regarded by Democrats as a wild-eyed, dangerous right-winger, to be destroyed at any cost. Look at what the party did to Joe Lieberman."

Can you remind me when, exactly, Kennedy spoke at the Republican convention in support of the Republican candidate for President and/or campaigned on behalf of and gave monetary contributions to down-ticket Republican Congressional candidates in an election year?
12.1.2008 11:01am
Observer:
Guest101: Kennedy spoke at the Democratic Convention, campaigned on behalf of Democratic candidates and gave monetary contributions to Democratic candidates. The views of the Democratic Party back then were more or less in line with the views of the Republican Party today (while the Democratic Party today is well to the left of even the left wing of the Democratic Party in the 60s), so the comparison seems apt.
12.1.2008 11:11am
Uh_Clem (mail):
I also believe that it will be much more conservative on issues of separation of church and state

What does this mean? Does he mean "conservative" as in libertarian-conservative or "conservative" in the sense of the religious right?

That's why these liberal/conservative labels have limited utility.
12.1.2008 11:11am
Anderson (mail):
his "most conservative" claim is completely unsustainable

When did Prof. Adler become such a hack? I remember his having some good blog posts in the past, but as we've now seen in multiple comments, he calls a claim "completely unsustainable" without being able to name a single counterexample.

I don't pretend to know the answer myself, but Prof. Adler *does* so pretend ... and a pretense is all we've been given, thus far.

Name the more conservative court, or apologize to Prof. Chemerinsky. Those would seem to be the options.
12.1.2008 11:12am
Sarcastro (www):
Observer's right. FDR fits into the arbitrarily defined conservative box much better than the liberal one. And that Johnson guy was like Reagan's twin!

Today's Democratic party is clearly to the left of the Communists of the 1960's, if you compare their positions on offshore drilling!
12.1.2008 11:18am
Tugh:
I completely second Anderson's 11:12am post. Professor Adler does not give a single example contradicting Professor Chemerinsky's claim. If this is not the most conservative Court since 1930s, which one is? Even Professor Bernstein seems to reluctantly admit that this IS the most conservative Court since 1930s. The fact that it still be more "liberal" than the 1930s Court is irrelevant since this was not Chemerinsky's claim.
Therefore, contrary to what Professor Adler said, Chemerinsky's claim is not "fantastic." It is right.
12.1.2008 11:20am
MarkField (mail):
From 1932 through 1968, we had generally liberal Democratic presidents, except for Eisenhower, who was a moderate Republican and who nominated 2 very liberal justices. It would be shocking if the Court weren't very liberal as a result.

Since 1968, we've had generally conservative/moderate conservative Republican presidents, except for Carter and Clinton (who was a moderate Democrat), the former of whom had no SCOTUS nominations and the latter of whom nominated moderate liberals. It would be very surprising if the Court weren't conservative as a result.

Chemerinsky's point seems pretty obvious to me.
12.1.2008 11:24am
Bama 1L:
I also believe that [the Roberts Court] will be much more conservative on issues of separation of church and state . . . .

As Uh_Clem notes, "conservative" is kind of confusing. Suppose Locke v. Davey (upholding a state-imposed ban on using a generally-available scholarship to fund education in theology) came out the other way. Would that be conservative?

Well, it would certainly please many religious conservatives.

But it would not be a jurisprudentially conservative result in that it would overturn a longstanding understanding of the 1st Amendment.

It would gut many ancient state constitutional provisions and force the states to do something they have not wanted to do--not exactly federalism, which is imagined to be part of a conservative agenda.

It would involve unelected federal judges telling elected legislators what to do, which again is something conservatives tend not to like.

It would also make government entitlements more broadly available, which isn't exactly small-government conservatism.

So what would have been the conservative result in Locke?
12.1.2008 11:30am
Jonathan H. Adler (mail) (www):
A quick response to various commentators:

First, I address many of these arguments in greater depth in the paper. Among other things, in the article I note that one way the Court could be considered more conservative is that, overall, it is less inclined to move the law in a "liberal" direction than most predecessors. I further note that any such claim has to be tempered due to a) the limited number of cases upon which to form judgments, and b) the malleability of the terms.

Second, as the quoted passage above illustrates, Chemerinsky's claim is more aggressive than simply claiming that this court is the "most conservative" because it is the least liberal. He goes further to claim that the Court is "notably more conservative" than its predecessors, so he is also making a claim about the degree of difference, not just the direction.

Third, I think there are many courts that are more "conservative" than the current Court, as Chemerinsky defines the term. Certainly the Courts of the 1940s were more conservative on virtually every issue of relevance, particularly on executive power. Of course, such comparisons are difficult to make given the time frame.

Looking more recently, the early-mid Rehnquist Court was also at least as conservative as the current Court. It was more conservative on federalism (both on commerce clause and sovereign immunity), executive power, regulatory takings, standing, and capital punishment; no less conservative on abortion (Casey) and race (Adarand, Croson) -- too issues Chemerinsky highlights -- and arguably no less conservative on criminal justice issues given the Court's recent sentencing and confrontation clause holdings that counter-balance increased conservatism in other areas.

Where the Court might be modestly more conservative is in some church-state cases (though this is speculative), preemption, and its stinginess in finding implied rights of action or reading statutes so to allow claims to go forward (e.g. Ledbetter). However, the leftward jurisprudential shifts under this Court with regard to standing, capital punishment and executive power in particular are far greater, and more consequential, than any alleged rightward shift on these issues or others that Chemerinsky identifies.

Finally, in judging whether the Court is "conservative" than the times, I note that on most key issues the Court is either in line with, or slightly to the left of, popular opinion.

JHA
12.1.2008 11:38am
einhverfr (mail) (www):
I think the court is more conservative, but not in a right-wing way. I mean "conservative" in the way we say that "Pindar and Homer were artistically conservative."
12.1.2008 11:52am
DCP:

I think Adler's point is that:

(a) it's too early to be making this judgement
(b) there isn't enough evidence to be making such sweeping generalizations
(c) even if we disregard (a) and (b) above these types of evaluations are inherently shaky given the nature of the Court and the shifting attitudes of those who view it.

It's kind of like saying Albert Pujols is the best baseball player in the past 75 years. For starters the guy is only 28 years old and hasn't yet completed half of his career. And secondly, even in a sport that provides a wealth of hard numbers to measure performance, labeling some player as the "best" is probably too subjective a claim to be taken definitively. How would you measure Pujols' treasure chest of MVPs against Cobb's .365 average, Ruth or Bonds' Home Runs, Maddux 20 year mastery of the strike zone or Mantle's 5 tool ability and idoltry in the eyes of every kid in the country?

I mean feel free to have a discussion about it at your next cocktail party, just don't expect any sort of rational validity to emerge.

I agree with the above poster. This wasn't academic scholarship; it was a political manifesto aimed at Obama's potential/desired reshaping of the Court's ideology - an issue that was largely ignored during the campaign.

I will also add that attacking a court for being too "conservative" is often a reflection of the court accurately interpreting LAWS (those pesky little things drafted by legislative bodies) that were too conservative for someone's liking, whereas being too "liberal" is often code for a willingness to ignore precedent, overstep your bounds or just completely make stuff up out of whole cloth (Miranda, Roe, etc). Yes, I know EC and others aren't adressing the merits of one or the other just proclaiming that A is more conservative than B, C or D, but the subtle implications are there.
12.1.2008 11:53am
David M. Nieporent (www):
And we should also be mindful that a court should be judged relative to their times.
Why? You throw that in almost as an aside, but that's the crux of the debate. And that goes in response to JosephSlater, as well:
You and Observer are arguing against a claim E.C. didn't make. You want to discuss whether the court is conservative by your particular lights.

The question is whether the court is more or less conservative than other courts since the 1930s. Put me down as another one curious as to which court that might have been.
But without defining "conservative," one can't evaluate the claim. If "conservative" is defined as "Given two possible outcomes of the case before the Court, the justices are more likely to vote for the more conservative of the two outcomes," then the claim may well be correct. But if "conservative" is defined by an absolute standard, by the substantive nature of the two positions in the case, then it's a different story.


And because Chemerinsky ignores this second approach, he mistakenly focuses on 5-4 "ideologically divided" cases.


Incidentally, Chemerinsky is also disingenous when he says that the court is "conservative" because it is "pro-business" because it has voted to restrict punitive damages. But of course that has been a liberal project, not a conservative one. He notes that Alito and Roberts joined the liberals in the most recent Phillip Morris case, but somehow comes up with the muddled conclusion that this proves conservativeness of the court.
12.1.2008 11:56am
martinned (mail) (www):
@David Nieporent: As far as I can see, Chemerinsky does define "conservative". He writes clearly that he is interested in relative conservativeness, as in: relative to public opinion, and he even lists some of the issues that he thinks define this question in our era. (See quote in the original post.) Those examples even clear up the possible question of whether conservative in this context means "emphasis on stare decisis and gradual change" or "bible thumper".

And this choice makes sense. Whether the court has become more or less conservative in any absolute sense is much less interesting than how its position relative to public opinion generally, or to the average opinion of Congress &President has changed.

BTW, I'm not sure how restricting punitive damages has ever been a "liberal project". AFAIK, trial lawyers are a traditional centre of support for the Democratic party, while one only has to look at last term's Exxon Valdez case to see how big business, a traditional constituency of the Republican party, might benefit from "tort reform".
12.1.2008 12:07pm
JonC:

I'm not sure how restricting punitive damages has ever been a "liberal project".


Judicial limitation of punitive damages has been a "liberal project" in the sense that it has generally been the more liberal justices, including Stevens, Souter, and Breyer, who have championed it, while the justices whom most would agree are the most conservative, Scalia and Thomas, have consistently refused to vote for it. Last Term's Exxon v. Baker was sort of sui generis, but even there you have Souter writing the opinion.
12.1.2008 12:14pm
Dilan Esper (mail) (www):
David Savage wrote a nice book in the early 1990's which argued that Rehnquist was one vote short of a conservative court. (At that point, Kennedy was more conservative and O'Connor was the swing vote.)

It seems to me that Roberts is also one vote short. The reality is that I suspect that the Court is always "one vote short", i.e., the tendency is for some justice to step up and be the swing vote in any court.
12.1.2008 12:16pm
flyerhawk:
DCP,

will also add that attacking a court for being too "conservative" is often a reflection of the court accurately interpreting LAWS (those pesky little things drafted by legislative bodies) that were too conservative for someone's liking, whereas being too "liberal" is often code for a willingness to ignore precedent, overstep your bounds or just completely make stuff up out of whole cloth (Miranda, Roe, etc)


I see. So a conservative interpretation of the law is accurate whereas a liberal interpretation of the law is overstepping the bounds or making things up? Good to know that you don't allow your own biases to control your views.

David Nieporent,

What is the point of using an absolute standard?

Using the Taney Court as a standard then the Fuller court was downright radical.

The problem with using an absolute standard is that future courts will almost ALWAYS be more liberal than their predecessors, since our society almost unerringly moves to the left over time.

Would the Fuller Court ever consider ruling for the state in Loving?

The political terms conservative and liberal are fairly easy to define in the context of the court. But they are based on the contemporary standards of the time. So the definition is consistent the context is ever changing.
12.1.2008 12:20pm
David M. Nieporent (www):
From 1932 through 1968, we had generally liberal Democratic presidents, except for Eisenhower, who was a moderate Republican and who nominated 2 very liberal justices. It would be shocking if the Court weren't very liberal as a result.

Since 1968, we've had generally conservative/moderate conservative Republican presidents, except for Carter and Clinton (who was a moderate Democrat), the former of whom had no SCOTUS nominations and the latter of whom nominated moderate liberals. It would be very surprising if the Court weren't conservative as a result.

Chemerinsky's point seems pretty obvious to me.
The problem is, your argument ignores stare decisis. Since 1968, the "generally conservative" justices were building on the very liberal foundation of the very liberal justices of the 32-68 period. The fact that many of the post-68 justices wouldn't have been inclined to issue the rulings of the Warren-Brennan-Marshall court in the first place doesn't change the fact that they accepted most of those rulings as established principles. Hell, Rehnquist wrote Dickerson.
12.1.2008 12:27pm
flyerhawk:
David,

You are arguing for a reactionary court, not a conservative one.
12.1.2008 12:35pm
martinned (mail) (www):

Judicial limitation of punitive damages has been a "liberal project" in the sense that it has generally been the more liberal justices, including Stevens, Souter, and Breyer, who have championed it, while the justices whom most would agree are the most conservative, Scalia and Thomas, have consistently refused to vote for it. Last Term's Exxon v. Baker was sort of sui generis, but even there you have Souter writing the opinion.

Curious. I usually see it advocated by right-leaning think tanks. (Although I guess they don't advocate "judicial limitation" per se.)
12.1.2008 12:35pm
einhverfr (mail) (www):

The problem is, your argument ignores stare decisis. Since 1968, the "generally conservative" justices were building on the very liberal foundation of the very liberal justices of the 32-68 period.


Exactly. IMO, Conservatism not opposite "Liberal" thought but "Progressive" or "Innovationist" thought. Think "Pindar" instead of "Sophocles." By this measure, I think the court has been gradually growing more conservative since the 60's and Roberts is more conservative than Rhenquist, and his impact has shifted the court noticeably towards judicial minimalism.

But law is supposed to be conservative by this measure. I just don't like it to be partisan (trying to get judges there that will overturn unpopular precedents just because they are unpopular, not necessarily because they are bad law).
12.1.2008 12:40pm
Jacob Berlove:
I think it's pretty clear that this court has been/will be more conservative than the Rehnquist court on church-state, racial, and criminal justice issues. Hudson v. Michigan undoubtedly would have come out the other way with O'Connor, and we're just not going to see the three to four fourth amendment or criminal justice cases decided liberal with five votes that used to be typical when O'connor was on the court. Don't expect to see almost any ineffective assistance of counsel or Brady cases succeeding on the court, and I also don't think that there will be one case in which the question of adopting the exclusionary rule is squarely presented in which the court will vote to apply it. Finally, we may will see part of the ultra-sacred voting rights act struck down this year.
12.1.2008 12:46pm
Jacob Berlove:
I think it's pretty clear that this court has been/will be more conservative than the Rehnquist court on church-state, racial, and criminal justice issues. Hudson v. Michigan undoubtedly would have come out the other way with O'Connor, and we're just not going to see the three to four fourth amendment or criminal justice cases decided liberal with five votes that used to be typical when O'connor was on the court. Don't expect to see almost any ineffective assistance of counsel or Brady cases succeeding on the court, and I also don't think that there will be one case in which the question of adopting the exclusionary rule is squarely presented in which the court will vote to apply it. Finally, we may will see part of the ultra-sacred voting rights act struck down this year.
12.1.2008 12:46pm
MarkField (mail):

The problem is, your argument ignores stare decisis. Since 1968, the "generally conservative" justices were building on the very liberal foundation of the very liberal justices of the 32-68 period. The fact that many of the post-68 justices wouldn't have been inclined to issue the rulings of the Warren-Brennan-Marshall court in the first place doesn't change the fact that they accepted most of those rulings as established principles.


There's a hidden assumption here, namely that liberals are less bound by stare decisis. Otherwise, the liberal courts of the period 32-68 would have been just as bound by the decisions of the Sutherland Court as today's court is bound by Warren/Brennan/Marshall.

Your assumption may very well be correct, but you haven't shown that. In any case, deference to precedent isn't what Chemerinsky meant by "conservative"; if that were true, it would be plausible to argue that liberals today are the "conservatives" simply because they want to retain the liberal decisions of the previous era.

There's always a lag between electoral results and the composition of the Court because of judicial tenure. What this means is that the Court is most out of step with public opinion at the end of an era (i.e., shortly after transition elections). That seems to be what Chemerinsky is getting at, so he's right -- this is the end of the conservative era which began in 1968, so the judges have mostly been appointed by conservative presidents (true) even though the electorate has now moved left (plausible). Similarly, the Court was most liberal, relative to the electorate in 1969 or so.
12.1.2008 12:56pm
Simon Dodd (mail) (www):
Jacob, what makes you think O'Connor would have voted the other way in Hudson?
12.1.2008 1:37pm
Simon Dodd (mail) (www):
Mark: As John Miller alludes to in the Dec. 1 issue of National Review, I'm sure that liberals were telling themselves "this is the end of the conservative era which began in 1968" in December 1976, too. Funny how the future can be unpredictable.
12.1.2008 1:41pm
Brian G (mail) (www):
The facts are wrong, but the narrative is right.

Isn't that all that matters these days?
12.1.2008 1:49pm
MisterBigTop:
Adler is right. Chemerinsky is full of it.

I think some are forgetting just how conservative the Rehnquist Court was for a short time in the 1980s. Think basic gay rights (Bowers), the death penalty for juveniles, abortion (before Kennedy and O'Connor went to the left on the issue), etc. Kennedy is significantly more liberal now than O'Connor was at that time in her career.
12.1.2008 2:36pm
MisterBigTop:
Addition to my post:

Bowers, of course, was decided when Burger was still CJ. The Court got even more conservative with the addition of Kennedy and Scalia. I'd say that the Court after those additions was significantly more conservative than the one we have now. Kennedy was a reliable conservative vote.
12.1.2008 2:40pm
flyerhawk:
MisterBigTop,

How did the balance of court change significantly during that time period.

Brennan begat Souter

Powell begat Kennedy

Blackmun begat Breyer

Certainly Thomas pushed the court to the right but that was in the 90s when Casey was decided.
12.1.2008 2:54pm
davidbernstein (mail):
Third, I think there are many courts that are more "conservative" than the current Court, as Chemerinsky defines the term. Certainly the Courts of the 1940s were more conservative on virtually every issue of relevance, particularly on executive power. Of course, such comparisons are difficult to make given the time frame.
Jon, in the 1940s, being in favor of strong executive power was considered "liberal," and wanting to rein in the executive "conservative." Think about FRD and TR. And Humphrey's Executor. To the extent that current conservatives have adopted what used to be liberal mantras (executive power, judicial restraint, etc.), that doesn't make the liberal courts that initiated these ideas "conservative."
12.1.2008 3:00pm
MarkField (mail):

Mark: As John Miller alludes to in the Dec. 1 issue of National Review, I'm sure that liberals were telling themselves "this is the end of the conservative era which began in 1968" in December 1976, too. Funny how the future can be unpredictable.


No doubt they were; Watergate distorted the usual sequence. The longer the historical perspective we get, the more accurate we can be.

I'm not saying that a new liberal era is about to begin. I do think that's likely, but obviously we'll have to see how it works out. What I am saying is that Chemerinsky's point seems to be based on at least some version of such an argument, and it's at least plausible. There's no doubt that (a) we've been in a long cycle in which conservative presidents appointed justices; and (b) we just had an election in which the more liberal candidate won. That makes the disconnect between justices and electorate pretty high, which seems to be Chemerinsky's point.
12.1.2008 3:47pm
Jonathan H. Adler (mail) (www):
David --

I don't think we disagree. I was imprecise in my language. Sorry. What I meant was that in the 1940s the Court was far more conservative on the question of executive power during wartime than it is today. You are certainly correct that the Court had a very expansive view of domestic executive authority at the time, and that this was considered to be a "liberal" position at the time (and, I might note, might still be considered "liberal" insofar as it rejected a formalist, unitary conception of the executive).

JHA
12.1.2008 4:04pm
Calderon:
To follow up on Adler's last post, why aren't the courts of the 1940's and early 1950's good candidates for being more conservative than the current Court? Particularly on individual rights such as free speech and detaining the US's own citizens based on alleged military threats they were much more conservative in the sense of not recognizing individual rights, or having cabined views of such rights. Similarly, while I don't claim to be a scholar of SC decisions of that era, didn't the Court at that time affirm criminal convictions of African-Americans that today would be overturned because of due process concerns, all-white juries, and so forth?

Does Chemerinsky discuss the 1940's and 1950's courts in his article, or is it simply 1930's, Warren Court, and the Court today?
12.1.2008 4:11pm
Nunzio:
1995 through 1997, the Court was more conservative than 2005 through 2007.

Since Chemerinsky's working with a three-year period, he would have to show that every three-year period is less "conservative," which he can't do.
12.1.2008 4:11pm
martinned (mail) (www):
@Calderon: Because Chemerinsky is talking about conservative relative to the general public opinion.
12.1.2008 4:13pm
AntonK (mail):

"Dean Erwin Chemerinsky"
When "Dean Erwin Chemerinsky" claims that President Bush is the AntiChrist, and that the Earth is actually flat, are you going to post on that too?
12.1.2008 4:28pm
redfish (mail):
If we judge the leaning of the court by whether it agrees with positions taken by conservatives, versus positions taken by liberals, then it obviously does lean more conservative than liberal.

If you take issues like abortion, gun rights, campaign finance reform, who do you think are more happy with the court--liberals or conservatives?

So there's no doubt you can say the court agrees more with 'conservative politics' than it has in a long time.

That's the simple issue.

The problem is not only trying to relate conservatism and liberalism to some grand historical timeline, but also whether it's relevant.

Over a short time the political dialogue --including the dialogue on Constitutional issues--- may move more towards the right or more towards the left, but in the long run it moves towards the center. So, the relevant question is whether the current court is more centrist than the previous court.

On most issues I think its more towards the center. I don't see the court as willing to overturn decisions like Roe v Wade, but willing to make judgments that keep them in check with other relevant legal considerations.
12.1.2008 4:39pm
MCM (mail):
AntonK: Do you even know who Chemerinsky is?
12.1.2008 5:58pm
einhverfr (mail) (www):
Mark Field:

My own opinion is that we are about to see a fundamental shift in political discourse in the US. I don't know if it is a liberal or progressive age, and indeed I hope not. But the fact is, this election has shaken both Democratic and Republican political alliances in ways which were not seen in recent history. This would have been the case even if McCain had won.

I don't think it will be a simple as a shift to the left. We may see a change in orientation towards the left, coupled with a continuation of a conservative methodology (this is what I actually hope for). We could just as easily see a continued trend away from fiscal responsibility and towards big government in al areas. We will have to see. However, this is more profound than a simple shift away from conservatism and is more likely to cause political labels to be substantively redefined.
12.1.2008 6:07pm
LM (mail):
DavidBernstein:

It seems to me that this IS the most conservative Court since the 1930s, but the false implication is that the Court is similar to the 1930s Court. The Roberts Court is far, far, closer to all of its predecessors than it is to the early Hughes Court. For that matter, the Roberts Court is far closer to the Warren Court than Justice Brandeis, perhaps the most liberal members of the early Hughes Court, would have been.

I think that's basically right, but the Brandeis comparison exposes the limits and ultimate futility of this kind of exercise. Where would Brandeis stand today if he were 50 years old and the last 100 years (including his own early 20th century jurisprudence) were in his historical context? Who knows? It's like Babe Ruth - Barry Bonds comparisons. Too much changes over time to answer those questions intelligently. The only apples-to-apples comparisons are contemporaneous.

By that standard, the current (Kennedy) Roberts Court is as Mark Field explained, the latest in a series of incremental moves to the right during the only period since WWII when the trend wasn't left. In other words, Chemerinsky gets it about right.
12.1.2008 7:45pm
MarkField (mail):

My own opinion is that we are about to see a fundamental shift in political discourse in the US.


I agree. JMHO, but I believe the shift will re-define what it means to be "left" and "right". That means current identification won't necessarily be a good indicator of how matters will be perceived some years from now.

I, of course, plan to cling desperately to my soon-to-be-outdated views. Whatever they may be.
12.1.2008 10:00pm
Thomas_Holsinger:
Chemerinsky has lost his self-discipline and perspective. It's sad. He was half of the Constitutional law panel at a California trial court research attorney convention last month, and spent an inordinate amount of time emoting about the plight of the prisoners at Gitmo.

I asked in my review of the panel that Chemerinsky not be invited back. He was as bad a speaker as then California Lieutenant Governor Mervyn Dymally was as the commencement speaker at my gradauation from Hastings in 1975, and that is saying something.
12.1.2008 11:04pm
Vermando (mail) (www):
The professor's responses clarify things quite a bit.

I agree, though, with the tenor of Mark's first point - Dean Chemerinsky's claim is not so implausible considered from the perspective of presidential appointments. Indeed, that point also supports the claim that some of the earlier Rehnquist courts were more conservative than the current court, especially if one considers the moderates and liberals appointed in the late 1980's and early 1990's (e.g., Kennedy replaced Powell, Souter replaced Burger, Breyer replaced Blackmun, Ginsburg replaced White).

I think that the argument about the 1940's courts is a bit of a canard. Certainly, on individual issues prior courts have been more liberal or conservative than the current court. However, in the 1930's and 40's liberals were more than happy to give FDR all of the power he wanted. Indeed, it is not unreasonable to claim that the current conservative taste for executive power comes from their success in that area of the electoral arena, and that when the current era passes, conservatives will rediscover their historical distaste for concentrations of power.
12.1.2008 11:41pm
Jacob Berlove:
Simon Dodd,
Besides O'Connor joining Stevens' opinion in Groh, which basically stood for the proposition (if you read between the lines and followed the oral argument)that the court was unwilling to do away with the exclusionary rule in a case in which a component of the fourth amendment would be left categorically unprotected, you can tell from Justice O'Connor's comments at oral argument that she was very stongly leaning to vote for Hudson.
12.2.2008 12:00am
Lawnchair Reactionary:

The views of the Democratic Party back then were more or less in line with the views of the Republican Party today


Where do the views of Republicans of 1960 stand? The nation could use a man like Henry Cabot Lodge, Jr. today.
12.2.2008 5:38am
MarkField (mail):

The nation could use a man like Henry Cabot Lodge, Jr. today.


"Mister we could use a man like Herbert Hoover again. Those were the days."
12.2.2008 11:02am
Andrew G:
Gosh, (Central VA Comm. Coll.) I (Hamdan) hadn't (EPA) realized (Kennedy v. LA) this (Boumedienne) court (Latin American Citizens) was (Gonzales v. OR) so (Quarterman) conservative!

Calderon's completely correct about the courts of the late 40s and early 50s. After Rutledge and Murphy died in 1949, Black and Douglas were basically in lonely dissent for several years, with the other seven Justices all being center-right to conservative. Even after Warren arrived in 1953, with high profile exceptions like Brown, the "Warren Court" era as we now know it really didn't get off the ground until Brennan joined during the 1956-57 term.

If one can forgive Chemerinsky of forgetting the long-gone, oft-forgotten early fifties, it strains credulity that he should forget the late eighties and early nineties. Look at Bowers v. Hardwick, Penry v. Lynaugh, and Stanford v. Kentucky. Although these were overturned prior to the start of the Roberts court, Roberts and Alito would have made no difference had they been on the court, since each time Kennedy was the swing vote to overturn.

Back in those days, conservatives were the ones overturning recent, controversial precedents. Witness Payne v. TN from 1991, boldly and shamelessly overruling SC v. Gathers from two years earlier. Now, controversial recent cases like FEC v. McConnell and Stenberg v. Carhart don't get overturned, but are inexplicably left standing by new cases that might be overruling them sub silentio, but there's no way to know for sure.

To get an idea of how conservative these courts were, just read Linda Greenhouse's July year end reviews of the Court for 1989, 1990, and 1991. My goodness, Ward's Cove, Wilks, and Patterson, from 1989, were so diabolically right wing that Congress had to pass a new civil rights act. And how about abortion? In late 1991, it was merely a question of when, not if, Roe would be relegated to the dustbin of history. Even in 1992, when the Court stunningly reaffirmed Roe, seven out of the nine Justices at least as "conservative" as Kennedy is today.

Hopefully, Adler's article will correct Chemerinsky appropriately
12.2.2008 11:31pm