How Conservative This Court?
Is the Roberts Court really that conservative? I don't think so. As I see it (and argue in this NRO article) the Supreme Court's 2006-07 term did not reveal a conservative ascendency, so much as it suggested the beginning of the "Kennedy Court." Justice Kennedy is the swing justice, and the pattern of judicial decisions largely reflects his approach to jurisprudence — moderately conservative on most issues. Interestingly enough, given Chief Justice Roberts' and Justice Alito's "minimalist" tendencies, the Court's moves to the "Right" will likely be smaller than its occasional lurches to the "Left."
Here's a taste of the article:
The replacement of Justice O'Connor with Justice Alito has shifted the Supreme Court slightly to the right, but there is no conservative legal revolution in the offing. If anything, the pattern of the Court's decisions somewhat reflects Justice Kennedy's somewhat conservative jurisprudence — moderately conservative and generally resistant to dramatic shifts in established doctrine. On many issues, Kennedy is in line with the minimalist approach of the chief justice and Justice Alito, yet on many others he is willing to be significantly more aggressive and depart from conservative principles. The swing justice has a soft spot for sweeping moral arguments, such as claims about personal autonomy or the nature of deliberative democracy.
Some feign surprise at the voting pattern of the Court's two newest justices, Chief Justice Roberts and Justice Alito. Yet both justices have performed as advertised. President Bush promised Supreme Court nominations in the mold of Justices Scalia and Thomas, and there was never much doubt that Roberts and Alito would join the conservative side of the court. They are both "conservative minimalists"; they read legal texts fairly but narrowly, resist the creation or recognition of new legal rights, show respect for precedent, and avoid announcing legal rules broader than necessary to decide a given case. If anything, some conservatives may think President Bush over-promised, as Roberts and Alito are more reluctant to reverse prior cases than either Scalia and Thomas. Indeed, Alito and Roberts are less prone to overturn prior precedent than any of their colleagues on the Court.
The full article is available here
There are several other Supreme Court-related articles on NRO today, including Allison Hayward on the campaign finance decision, Roger Clegg on the race-based school assignment case, and additional commentary on Bench Memos.
UPDATE: I suspect the most controversial claim in my article is that "Alito and Roberts are less prone to overturn prior precedent than any of their colleagues on the Court." I think this is a relatively easy proposition to defend, but I would like to hear arguments to the contrary. Note that my claim is not that Roberts and Alito always follow or uphold prior precedent, nor is it that Roberts and Alito have the best approach to prior precedent. Rather, my claim is that, as a descriptive matter, the two of them are more incremental and respectful of precedent in their opinions, taken as a whole, than any of the other sitting justices.