It's somewhat predictable. Another Supreme Court term ends, and commentators make sweeping generalizations based upon the result in a handful of cases. Thus, pundits proclaimed the arrival of a conservative revolution after the October 2006 Term, only to mount a hasty retreat after the October 2007 term failed to follow the script.
Wednesday's Washington Post features a story with a headline proclaiming this term saw a "move to the Right." Yet the most notable, and surprising, decisions this term were not sudden shifts to the Right, but the Court's failure to do so — it's failure to declare portions of the Voting Rights Act unconstitutional in NAMUDNO, its failure to find preemption in Wyeth v. Levine and Cuomo v. Clearing House, its failure to endorse broad executive power to disregard environmental laws in NRDC v. Winter. As the Post story acknowledges, this was more a Court "on the verge" than it was a Court clearing new ground.
This court may be more-likely-than-not to decide any given case in a "rightward" direction, but it is not particularly likely to move the law to the Right. So, for example, in Osborne the Court rejected the invitation to create a constitutional right to post-conviction DNA testing. This is a "conservative" result, but it was not a change in the law. The failure to recognize new constitutional rights does not a conservative shift make. Four years in to the Roberts Court, it's hard to identify a meaningful rightward shift comparable to its continued leftward shifts in many areas (as in Boumediene, Kennedy v. Louisiana, Mass. v. EPA, Caperton, etc.).
As I have maintained for some time — since pundits were rushing to proclaim that the Roberts Court had become radically conservative after the October 2006 term — the dominant features of the Roberts Court are a) a conservative minimalism that favors narrow holdings and generally seeks to maintain precedent, and b) the idiosyncratic jurisprudence of Justice Kennedy, which controls the outcome (and the tenor) of so many decisions. The end result is a moderately conservative Court, but one that is almost as likely to lurch Left as it is to inch to the Right.
Next term may well challenge my view, however. Indeed, it could turn out to be quite unpredictable (and revealing). The Court has accepted quite a number of cases that may force it to address big questions, including the Appointments Clause (Free Enterprise Fund v. PCAOB), regulatory takings (Stop the Beach Renourishment v. Florida DEP), and the Commerce Clause (Comstock), and that's not even counting the reargument in Citizens United or the prospect of another gun rights case. Throw a new justice into the mix, and we're going to have fun with this one. Given the substance of some of these cases, I suppose it's a no-lose proposition for me. Either the Court confirms the line I've been taking, or it shows some interest in curtailing federal power. Any bets which it will be?
Related Posts (on one page):
- Did the Court Move Right?
- Is the Roberts Court Suddenly "Minimalist"?
"it's failure declare portions?"
Whaah?
["failure TO declare portions" - Fixed. Thanks.]
I'm pretty sure Orwell just rolled over in his grave.
Federal preemption of tort claims and state regulation is certainly a goal of the political Right - or at least it was when the Right was in power at the federal level. However, in judicial terms, federalism has almost solely been a feature of the Right, so I agree with you that it's odd to see a pro-federalism decision (i.e. no preemption) described as a Left-friendly result.
Process-wise, leaving a matter to the States is a "Right" result, but that becomes an incoherent description unless you look at the substance as well. For example, the Kelo decision created a standard of extreme federal deference to the decisions of state and local governments regarding eminent domain policy, pursuant to the traditional understanding that land use is a local matter. But I've never seen anyone make the argument that Kelo was a "Right" decision merely because it came out in favor of state and local power, and of course the Supreme Court lined up in precisely the opposite direction. So it's about more than just whether the federal government ended up with more or less power.
I don't think Kelo "created" a standard of extreme deference as much as it recognized a longstanding tradition of almost total deference and suggested that there could be some theoretical limit that was not met in the case at hand.
I think Kelo and preemption cases like Wyeth show that deference to states is not the sole province of the "right".
I also think the Roberts court has not moved very far to the right because the Rehnquist court was already firmly ensconced on the right. Major "left" decisions like Boumediene and Mass v. EPA stand out precisely because they mark uncommon deviations from the general "right" decisionmaking of a majority of the Roberts court.
Well, I agree with that, but I didn't want to fight about it. Someday there will be a followup case to Kelo that has Caperton-like facts, and then we'll really find out who loves a bright-line test!
KeloDred Scot "created" a standard of extreme deference as much as it recognized a longstanding tradition of almost total deference and suggested that there could be some theoretical limit that was not met in the case at hand."Is my edit hyperbolic? Probably.
In fact, yes, it is, as I don't believe Dred Scot even suggested the existence of any theoretical limit.
But if the original quote is a correct description of a current situation, that there has been a longstanding tradition of almost total deference in this area, then it seems to be in line with the edit theoretically here, even if not magnitudinally. And ironically, Dred Scott was to be considered as property, per that decision. Property that was to be protected.
Dred Scot seemed to declare the Missouri Compromise as unconstitutional. Kelo seems to declare the Constitution unconstitutional, as it threw out the "public use" portion.
"Left" and "Right" labels don't apply here... not on that one, and not in the 1850's case, either.
And in both cases, the law is an ass.
So sayeth Snaphappy.
Well sure, if you're unaware of the century's worth of precedents that allowed property to be taken for a public purpose, you might believe that Kelo accomplished such a thing. In other news, courts seem to be interpreting the Eleventh Amendment differently from how it's written.
Marshall and Ginsburg used those strategies when they were advocates before the court, not when they were/are sitting on the court. Why wouldn't Roberts, et al, follow the Warren Court strategy (like Thomas already is) and just strike down laws they see an unconstitutional?
First, did you really just ask why "balls and strikes" Roberts wouldn't adopt the playbook of the the activist-in-chief Warren Court? It's not Roberts' style, but more importantly, it likely wouldn't work because he has to keep Kennedy on the bus. It's much easier to reach reasonable, incremental results while laying down markers for the future: "We're not striking down Section 5 now, but we have serious concerns..."
It would be interesting to see what the Court would do with another Alito in Kennedy's seat. I suspect we would see many more Roberts opinions along the lines of, "We're not really overruling this longstanding precedent (even though we are)."
Did you notice I mentioned Thomas? In other words, why doesn't Roberts, Alito, and Scalia join Thomas's opinions and let Kennedy be Kennedy?
Not at all odd. Preemption exists where the state regimes are hopelessly backward, and preemption does not exist where state regimes are forward-looking and intelligent.
In any case, see the Thomas concurrence.
This "feature" sure doesn't explain Ashcroft v. Iqbal, a non-minimalist decision with a sweeping holding that is utterly careless toward precedent. Iqbal is the biggest case of the term and one of the most plainly wrong decisions in the Court's history. Nothing explains it except the conservatives justices' pro-defendant (both government and corporate) bias.
Amen. Preach it brother.
I'm not a big fan of that approach. If you have 5 votes of course you should overturn abominations like McConnell v. FEC first chance you get.
Kelo just reminds this question I often ask myself: Exactly what percentage (10% or 50%, or what) of my life/labor/PROPERTY do I owe each and every one of you by virtue of our simultaneous co-existence on earth?
No doubt, we've gone well off track in terms of what is considered "public use". Kelo was an opportunity for restoration, however, and instead it became a means to extrapolate off those bogus "public purpose" precedents you reference. It exacerbated the existing problem, and did literally throw out the "public use" portion of the Constitution, once and for all.
Back in the old days, it was the height of conservatism to worry as much, or more, about the pace of change than the result. You can read some books* to figure out which bunch was "slow".
*Pre-internet means of sharing ideas
One can call Kennedy's jurisprudence whatever one wants — "idiosyncratic", "moderate", whatever — but the fact remains that although not as far to the right as a Roberts or a Scalia, it is substantially to the right of O'Conner. This shift in the pivot point gives the Court a noticably rightward drift that I don't think can be glossed over or hand-waved away.
For better or for worse, Kennedy is to the right of O'Conner on issues people are more likely to care about. Key examples include affirmative action and abortion. I expect religion clause cases will also reflect this shift.
The matters on which the Court has found more individual rights, such as the right to a jury trial and the confrontation clause, are relatively esoteric areas most people don't have a strong political investment in. But the matters it's moved to the right on are essentially litmus-test issues for a substantial number of people. Therefore, I think it's basically accurate to say that from most people's point of view, the court has moved to the right.
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.