Last Sunday, the NYT published a lengthy article by Adam Liptak, titled “Court Under Roberts Is Most Conservative in Decades,” arguing that the Supreme Court, under Chief Justice Roberts, has become “the most conservative one in living memory.” I was in Yellowstone National Park at the time, and did not have the opportunity to comment at the time. Yet as this question is a recurring interest of mine (see, e.g., here, here, here, and here), I thought I would now. The post is long, so I’ve hidden it below the fold, but here is a super-short (and overly simplified) summary: Liptak’s article overstates the purported conservatism of the Roberts Court and, based on the data presented, could just as easily labeled the Roberts Court the “most restrained” or “least activist” Court in living memory. In sum, there’s less to the article than meets the eye.
The article’s central claim is based upon political science research showing that the Roberts Court has been more likely to reach “conservative” decisions than its predecessors. Liptak reports:
In its first five years, the Roberts court issued conservative decisions 58 percent of the time. And in the term ending a year ago, the rate rose to 65 percent, the highest number in any year since at least 1953.
The recent shift to the right is modest. And the court’s decisions have hardly been uniformly conservative. The justices have, for instance, limited the use of the death penalty and rejected broad claims of executive power in the government’s efforts to combat terrorism.
But scholars who look at overall trends rather than individual decisions say that widely accepted political science data tell an unmistakable story about a notably conservative court.
Elsewhere in the article, Liptak writes “the pace of change has been dizzying” since Justices Roberts and Alito joined the Court, but also that “the rightward shift is modest.”
Assuming that the definition of what constitutes a “conservative” or “liberal” decision is accurate (more on that below), this methodology does identify decisional trends, but does it necessary identify which courts are more “conservative”? It depends on what one means.
A court that adopts a conservative result more often does not necessarily move the law to the right more than one with a more liberal record (a point Liptak acknowledges). This is because a “conservative” decision may be one that overturns or modifies precedent to move the law in a rightward direction, but it may also be no more than a decision which refuses to embrace a liberal change in the law. A court in which the latter sort of decision predominates, what we might call a conservative “minimalist” court, could be identified as more “conservative” court than one which issues a greater percentage of liberal decisions but, when it issues conservative decisions, is more likely to overturn precedent and change the law. Yet the more conservative court in this instance would do less to make the law more conservative. As I have noted before, there is also an important difference between a judicial decision that, say, identifies a new constitutional limitation on legislative power and one that adopts a restrained statutory interpretation, as the latter is far more deferential to the political branches and easier to correct.
This distinction is important because the data presented by Liptak suggests that the Roberts Court is such a “conservative minimalist” court. Indeed, it appears to be the most restrained – or least “activist” (if “activism” is defined as willingness to overturn federal statutes or prior precedents) – Court since World War II. According to the data presented with the article in this chart, the Warren, Burger and Rehnquist Courts overturned precedents at an average rate of 2.7, 2.8 and 2.4 per term, respectively. The Roberts Court, on the other hand, has only overturned an average of 1.6 precedents per term. The record on striking down laws shows a similar pattern. The Warren, Burger, and Rehnquist Courts struck down an average of 7.9, 12.5, and 8.2 laws per term, whereas the Roberts Court has only invalidated an average of 3 laws per term. Liptak acknowledges this data at the close of his article, but downplays it with his description: “The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts.”
So, while the majority of the Roberts Court’s decisions are “conservative,” the data Liptak summarizes does not appear to have resulted in a more “conservative” legal regime, as the Roberts Court has done relatively little to change the law (at least thus far) compared to its predecessors. This is important, because it effectively refutes claims that there is anything particularly radical or “activist” about the Roberts Court, even if one accepts that it is notably “conservative.”
Had Liptak engaged in a substantive examination of the Roberts Court’s decisions, he would have found a similar pattern in most areas, some aspects of criminal procedure being a notable exception. As I discussed in this article, in many high-profile areas the substance of the Roberts’ Court’s opinions is no more conservative than that of the early Rehnquist Court. On abortion, for instance, Gonzales v. Carhart is more “conservative” than Stenberg v. Carhart, but Stenberg arguably represented a leftward shift from Casey and Carhart merely shifted the law back. On race, Parents Involved and Ricci may seem more conservative than Grutter, but they are not clearly more restrictive than Croson and Adarand. There is no evidence as yet that the Roberts Court is as willing to challenge federal power as the Court was under Burger (National League of Cities v. Usery) or Rehnquist (Lopez, Morrison, Boerne). There are exceptions, such as some of the Court’s Miranda decisions – which have certainly made the law less protective of criminal suspects and defendants – and Citizens United, but these exceptions are balanced by aggressive liberal opinions in areas like executive power and the death penalty. In sum, even if most of the Roberts Court’s decisions are “conservative” a substantive analysis of the Roberts Court’s decisions does not reveal a significant rightward shift in the law.
The article attributes the Court’s rightward shift to changes in personnel, in particular the replacement of Justice O’Connor with Justice Alito. There is little question that, on many issues, Justice Alito is noticeable more “conservative” than was Justice O’Connor at the time of her retirement. This is significant because, for many years, Justice O’Connor was the Court’s median justice. Replacing her could not help but shift the Court. And yet the addition of Justice Alito did not make the Court meaningfully more conservative than it had been a decade earlier, largely because Justice O’Connor’s jurisprudence “evolved” in a strikingly more liberal direction during her tenure on the Court (as did Justices Kennedy and Stevens, as shown by the work of some of the very scholars Liptak relied upon for his article). As a consequence, the Rehnquist Court drifted leftward even while its personnel did not change – and even more leftward when Justice Ginsburg replaced Justice White. So to say the Court is now more conservative than it was in, say, 2001, tells us very little about its overall ideological trajectory.
Interestingly enough, any rightward shift has not made the Court more out of step with the American public. As Liptak reports:
While the court is quite conservative by historical standards, it is less so by contemporary ones. Public opinion polls suggest that about 30 percent of Americans think the current court is too liberal, and almost half think it is about right.
On given legal issues, too, the court’s decisions are often closely aligned with or more liberal than public opinion, according to studies collected in 2008 in “Public Opinion and Constitutional Controversy” (Oxford University Press).
Liptak points to abortion and affirmative action as areas where the Court is “in sync” with public opinion. He could also have talked about executive power, the death penalty, and other areas in which the Court is, if anything, still to the public’s left.
What about the underlying methodology? Can we really describe all opinions as “conservative” or “liberal”? Here’s how Liptak describes the methodology:
votes favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights are, for instance, said to be liberal. Decisions striking down economic regulations and favoring prosecutors, employers and the government are said to be conservative.
About 1 percent of cases have no ideological valence, as in a boundary dispute between two states. And some concern multiple issues or contain ideological cross-currents.
But while it is easy to identify the occasional case for which ideological coding makes no sense, the vast majority fit pretty well. They also tend to align with the votes of the justices usually said to be liberal or conservative.
This approach is certainly easy enough with most contemporary cases, but there are areas in which this is difficult. Think of the sentencing cases. Which side is “conservative”? What about preemption? We usually think of preemption as something advocated by business groups, and might be coded as conservative, but would this apply to the cases involving Arizona’s immigration laws? And what about the dormant commerce clause? Is the “conservative” position one that clears away state obstructions to interstate commerce? Or that which adopts a more restrained view given the doctrine’s uncertain textual provenance?
Cases that clearly have an ideological valence at the time, may seem less clear over time. Ricci v. DeStefano was an “anti-employer” and “anti-government” decision favoring “people claiming discrimination,” and yet we would recognize it as “conservative” by contemporary standards. But a political science grad student twenty years hence might not recognize it as such. The same may be true for Comstock, in which the Court upheld federal power against a challenge by federal convicts. Does that make it conservative? I would think not. My point is not that coding cases is indeterminate, but that trying to maintain a consistent ideological metric over time through simple coding rules could be very difficult, and I am skeptical that such analyses give us a clear sense of whether, say, Justice Hugo Black was more or less “conservative” than Justice Kennedy.
A final note: To say the Court is more “conservative” or “liberal” is not to say anything about the quality of the Court’s work or the correctness of the Court’s decisions. For myself, I think the Court is too liberal in some areas, too conservative in others, and just right in still others. My interest in this area stems from a frustration with the rush to characterize the Court’s work in sweeping ideological terms and what I perceive as a fairly persistent effort to label the Court as ideologically extreme generally, and “conservative” in particular when such labels do not (yet) accurately describe the work of the Court.
merevaudevillian says:
There’s another perspective in all this–the shrinking docket. The Court has been taking fewer cases. And maybe that’s a good thing, because it’s showing restraint in reviewing (and potentially overturning) lower court decisions. But it’s certainly a factor to consider when considering the raw data (e.g., striking down X time per term, overturning precedent Y times per term), which may affect how we perceive of these stats: perhaps the court is, as a percentage, acting at a rate in harmony with previous courts; or maybe it’s only selecting the most egregious cases, keeping those numbers fairly low as an absolute matter.
August 1, 2010, 6:26 pmLior says:
Second merevaudevillian’s point: oughtn’t the propensity to overturn be measured per case as opposed to per term?
August 1, 2010, 6:40 pmJonathan H. Adler says:
I agree that it’s a good point — and one I’ve thought a little about. On the one hand, the decision to take a case is itself relevant, as a less restrained court is more likely to reach out and take cases unnecessarily. On the other hand, a smaller docket will, all else equal, result in fewer overturned precedents and voided statutes. It’s also important to note that not every case presents much of an opportunity to overturn precedent or a statute. So, to get a more complete picture, what would be required is a more substantive analysis of individual decisions to see whether, and to what extent, the Court took opportunities to overturn precedents or statutes and I believe were such an analysis conducted, it would not alter the overall picture of the Roberts Court. That is, I think such an analysis would show that the Roberts Court is less likely to take opportunities to overturn precedents and void statutes than its predecessors.
JHA
August 1, 2010, 6:46 pmStephen Lathrop says:
My picks for the three least restrained decisions in modern Supreme Court history: Rove v. Wade, Bush v. Gore, Citizens United. Anybody got a better list?
August 1, 2010, 7:00 pmAllan Leedy says:
So did Karl have the abortion?
August 1, 2010, 7:08 pmfrankcross says:
The propensity to overturn should be measured per term. Because it reflects cert decisions as well. The Court controls the cases it hears.
August 1, 2010, 7:46 pmSoronel Haetir says:
Too bad only the last was correct.
August 1, 2010, 7:47 pmCornellian says:
Not only is there no clear definition of the term “activist” beyond “reaches an outcome that I don’t like”, there’s isn’t even all that clear a definition of what “liberal” or “conservative” means in the context of judging. Scalia uses liberal judicial means to reach conservative policy outcomes, but he still gets called a conservative. Thomas gets called a conservative too, even though his approach to judging is very different from Scalia’s.
August 1, 2010, 7:48 pmLevi says:
I think we also have to consider the nature of the opinions themselves. While the Court reached many “conservative” decisions, the actual opinions in the cases dealt with small, technical issues. For instance, in the Free Enterprise Fund case, the Court did not overturn Sarbox or any of the rulings of the PCAOB.
I posted a somewhat similar response to Liptak’s article giving examples from cases last term that illustrate Liptak’s analysis was too simplistic. http://titcr.blogspot.com/2010/07/restraint-and-roberts-court.html Great article Jonathan.
August 1, 2010, 7:50 pmNowMDJD says:
I think that journalists such as Liptak who measure cases as liberal versus conservative don’t care about the legal principle. They care about the substantive result. They look at the Court as an alternative legislature. Thus, Raich was reported in the press as a conservative decision, even though the justices in the majority were liberals (plus Scalia). The press cared about marijuana, not about the Commerce clause.
August 1, 2010, 7:57 pmtilden says:
Ignorant partisan hackery like this is what makes it embarrassing to be a conservative.
August 1, 2010, 8:06 pmJonathan H. Adler says:
Why not Boumediene? I think even those who support the result recognize it represents the most aggressive exercise of judicial review of national security (some would say “wartime”) actions approved by both political branches in the nation’s history.
JHA
August 1, 2010, 8:54 pmdumbassery says:
Yes, someone should tell whoever appointed Roberts and Alito that they failed miserably if they thought they were getting “conservative” justices. They just got “restrained” justices.
I mean, really, Adler do you actually believe the bullshit that you peddle?
August 1, 2010, 9:35 pmRoberts Court is the Most Restrained in Modern History, Not Most Conservative « Our Robed Masters says:
[...] Adler: [...]
August 1, 2010, 9:40 pmLongCat says:
Do you just skim the posts before you comment and assume that Adler must be wrong, or read them and decide to be deliberately obtuse? Either way, kudos for staying on message as to your own idiocy.
August 1, 2010, 10:05 pmPeter Shalen says:
That’s interesting. I’d appreciate seeing some quotes from supporters of the decision who describe it that way. The rhetoric that I hear in support of the decision is mostly from people who claim that the Bush administration had been “trampling the Constitution” by denying the right of habeas corpus to the detainees, and that the 5-4 decision was merely affirming the obvious.
August 1, 2010, 10:09 pmJonathan H. Adler says:
Mr. Shalen –
In my experience, many who support the decision, which invalidated an act of Congress, see it as a necessary corrective to the judicial passivity that has traditionally greeted national security measures during times of war or perceived external threats, Korematsu and Hirabayashi being but the most conspicuous and shameful examples.
JHA
August 1, 2010, 10:54 pmJonathan H. Adler says:
When did I ever say that Roberts and Alito were not “conservative” justices? The issue is whether their confirmations have made the court noticeably more conservative than it used to be.
FWIW, both Roberts and Alito are more “restrained” than I would prefer. See, e.g., Comstock.
Any more substantive critiques to offer?
JHA
August 1, 2010, 10:58 pmPeter Shalen says:
Yes, I see. Thanks!
August 1, 2010, 11:24 pmAdam says:
As far as the “most unrestrained decisions” in recent memory go, I would add Massachusetts v. EPA to the list: The Court’s liberals + Justice Kennedy invented a new doctrine of state standing as a way to bypass every single traditional standing requirement, then treated Chevron deference as if it didn’t exist, while also casually dismissing major ambiguities in the statutory language, all (it seems to me) solely to reach the desired result of putting pressure on the Bush Administration to regulate greenhouse gases.
August 1, 2010, 11:49 pmPatty Shundynide says:
Seconded.
August 1, 2010, 11:55 pmJoe says:
Boumediene‘s actual real life effects, see repeated entries at Scotusblog, is very unclear.
As to least activist: I don’t like the term “activist,” since it often is used arbitrarily, but given its work on school diversity programs (Parents United), guns, enemy combatants, the death penalty, the confrontation clause, Citizen’s United, certain business related areas and probably other areas, it seems pretty activist.
This includes a technique of often using minimalism to promote its ends (e.g., the voting rights case that called into question decades of law, even if it was 8-1 on results, using some argument that experts in the field believe was totally makeweight, or the abortion case with a narrow result but a logic that would lead many more laws to fall if some lower courts decided to read it that way). This “picking battles” approach is in itself pretty ‘activist’ in a way, since it is all of a piece. Just “calling balls and strikes” isn’t the deal.
As to the big three cited: Roe was rightly decided (the breadth debatable; the more tricky case was actually Doe v. Bolton, which had more exceptions), Bush was not and Citizens United was also rightly decided on the result but again it probably should have been decided more narrowly.
August 2, 2010, 12:37 amStephen Lathrop says:
Joe, I’m curious about your take on Citizens United. You seem to me to be suggesting that some similar result could have been reached without the disregard of procedure, disregard for precedent, and gratuitous assumptions of fact actually used by the Court. Because I’m not a lawyer, I need help understanding this stuff.
I think the record with regard to precedent is pretty clear for anyone who has followed the commentary. The other two, however, you could maybe fill me in on. For instance, how do you get around the criticism that the Court basically created a case out of whole cloth, apparently to enable the ruling it wanted to reach?
And with regard to fact, how do you deal with stuff like this?:
Isn’t that just assuming the result you want to reach and calling it fact? Note that “speakers” in the second sentence doesn’t mean speakers, but independent expenders.
And assuming you might not agree with me that the third sentence is one of the most preposterous assertions against fact ever made in public, how do you get to the result in Citizens United without any record to support that assertion?
Is there a lot more going on that I would understand better if I were a lawyer?
August 2, 2010, 4:15 amBenjamin Davis says:
One person’s restraint is another person’s activism. One person’s activism is another person’s restraint.
August 2, 2010, 8:37 amBest,
Ben
Joe says:
Stephen, the breadth of the ruling and so forth, underlines why I think the ruling should have been decided more narrowly. Nine justices were willing to rule for Citizen’s United on narrower grounds.
I do find the procedural path taken dubious — though it’s not like something like that was never done before surely — especially the accelerated argument. Election law experts were especially upset about that.
But, given they decided to take the case, focusing on the case being there as a given, the basic idea that corporations should not be treated so differently is a reasonable result given precedent. Again, the breadth of the ruling — including your excerpt — is open to question. For instance, a “corporation” by definition need not be corrupting, such as some non-profit or very small firm. But, a general statement that implies even mega-corporations are not really a concern — not necessary for the ruling — is problematic.
August 2, 2010, 9:40 amCalderon says:
Depends on what you mean by modern — and of course what you mean by “least restrained” — but there are plenty that could be substituted, such as Furman v. Georgia and many other death penalty cases, various criminal procedure cases including Miranda, along with my personal candidate Reynolds v. Sims (which helds that States cannot have a legislative body chosen in the same way as the US Senate). You could, of course, also pick Brown v. Board of Education and its progeny as one of the least restrained decisions as well.
Regarding Citizens United, while it’s currently the favorite bugbear of progressives, I really doubt its going to stand the test of time as a “least restrained” or outrageous decision given the precedent it’s built on. And even if you think it’s not restrained, Buckley v. Valeo would be even less restrained, since there was far less precedent on the protection of campaign donations and expenditures at the time of Buckley.
August 2, 2010, 9:43 amJonathan H. Adler says:
Joe –
On what basis do you claim that “nine justices were willing to rule for Citizen’s United on narrower grounds”? While Justice Stevens’ dissent criticized the majority for nor ruling more narrowly, it also proceeded to reject the any basis for ruling more narrowly. See fn.16 in which Justice Stevens explains that the dissenters did not adopt a narrower construction of the statute because there was no need “to practice constitutional avoidance or to vindicate Citizens United’s as-applied challenge” because they did not see any First Amendment problem.
JHA
August 2, 2010, 9:47 amSCOTUSblog » Monday round-up says:
[...] the Volokh Conspiracy, Jonathan Adler added his voice to the critics of Adam Liptak’s Roberts Court article (published [...]
August 2, 2010, 9:55 amDJR says:
Overturning precedents is one thing, but I’ve never understood why striking down statutes is considered “activist.” Since Marbury judicial review has been a central part if not the raison d’etre of the Supreme Court. Aren’t we taught in grade school how important judicial review is to our system of constitutional checks and balances? If a law truly violates the Constitution, isn’t it the judiciary’s job to say so? It’s not the Court’s fault if a state or Congress overreaches. Preemption is a good example. The Court didn’t invent the Supremacy Clause, so why does it get tagged activist if a state passes a law that interferes with federal law? So long as it’s following preemption precedents that is in the main of its duties.
In a similar vein, I’d point out that the Roberts Court (particularly Roberts himself) has a tendency to overrule in all but name, claiming to adhere to a prior precedent but in fact gutting it. Does Liptak account for those in his statistics?
August 2, 2010, 9:56 amMonday round-up Internet Related Technologies Monday round-up says:
[...] the Volokh Conspiracy, Jonathan Adler added his voice to the critics of Adam Liptak’s Roberts Court article (published [...]
August 2, 2010, 10:55 amJoe says:
Prof. Adler, I have read various analysts argue that the dissent was quite willing to decide things narrowly, if the majority chose to go that route. Some have suggested that it did not want to concur in part given that this was not done since it would give too much credence to the ruling (one even referenced Bush v. Gore on that front).
Are you under the impression, I say this neutrally, that if the ruling was narrow, the dissent STILL would have dissented in full? I surely can’t say for sure, but I seriously doubt it. Fn16 is not really helpful here. For instance, the alternate narrow opinion — one Stevens seemed to push during oral argument — would not necessarily be one that would “strike down any statutes.” My understanding is that it could have been a narrow ‘as applied’ challenge. And, if the dissenters joined a narrower ruling, perhaps pragmatically, they would omit their willingness to go further.
As Thomas once said, they might be willing to go to the 80 yd line, but for the sake of unity, they would agree to only go to the 60. What they say in separate opinions and dissents, notwithstanding.
[BTW, Justice Ginsburg was interviewed by Jeffrey Rosen recently -- it was on C-SPAN over the weekend -- and the case was brought up. She was diplomatic, noting the majority thought the broader issue had to be immediately handled, after it was originally brought up to decide a narrow issue.
As with a recent speech on the use of international law, it might interest some around here. The video should be available at the C-SPAN website soon enough. Scotusblog has a link to the speech -- see last week's entries.]
August 2, 2010, 11:21 amfalafalafocus says:
I would want to see the quote where Justice Thomas said this since it implies a complete lack of football acumen. Cf. Justice Thomas’s claim that he tries to keep up with ESPN and the Deuce.
August 2, 2010, 12:34 pmJonathan H. Adler says:
Joe –
Yes, I believe that even had the majority in CU adopted a narrower basis for their decision, it would still have been a 5-4 decision. Why? Because the dissenters believed (correctly in my view) that CU‘s conduct was covered by the statute and (incorrectly in my view) that CU‘s conduct was not entitled to First Amendment protection. This is clear both from Justice Stevens’ opinion and his other opinions in this area (such as those calling for overturning extant portions of Buckley v. Valeo). The more liberal justices have shown themselves quite willing to write separately to embrace a narrower basis of decision when that is what they believe is proper (see, e.g., Stop the Beach. In CU, not only did they not embrace a narrower holding, they explicitly rejected the premises upon which such a holding would have been based.
We could just as easily ask whether the majority would have issued such a broad ruling had the dissenters been willing to hold for CU on narrower grounds, but I suspect the answer would be the same, largely because the bases upon which a narrower ruling would have had to rest were quite a stretch. On the other hand, perhaps some of the justices would have been convinced to go along for the sake of unanimity. Cf. NAMUDNO.
JHA
August 2, 2010, 1:08 pmAugust 4 roundup says:
[...] Under Roberts Is Most Restrained in Decades” [Adler/Volokh, [...]
August 4, 2010, 9:32 amFinger On The Pulse: From Our Blogroll And Beyond « The Legal Pulse says:
[...] The debate over how to characterize the Roberts court continues. Jonathan H. Adler of Volokh takes another shot. (Volokh Conspiracy) [...]
August 6, 2010, 10:39 amProp 8: How the Decision Reads | The Perpetual Post says:
[...] of precedent, Dani undeniably has a point. (Although the restraint of the Roberts Court is a matter some would debate.) Nothing Vaughn Walker wrote, short of the Constitution itself, can preordain an outcome. [...]
August 17, 2010, 2:02 amJohn Roberts, the Accidental Chief Justice - NYTimes.com says:
[...] scholars debate whether the court under his leadership has become a whole lot more conservative or scarcely more conservative at all. A Roberts court decision earlier this year, the Citizens United campaign-finance ruling, prompted [...]
September 9, 2010, 10:25 pm