Is the Supreme Court Conservative?:
Writing in the Washington Monthly, Stephen Pomper offers this assessment of the Rehnquist Court:
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To the surprise of the legal left, the Rehnquist Court has refused to overturn Roe v. Wade and has broken new ground in protecting the civil rights of homosexuals. It has endorsed some forms of affirmative action. In last Spring's highly charged enemy detainee cases, it refused to write the executive branch a blank check for wartime detention powers. And even in its hypertechnical (and therefore less controversial) federalism cases, which concern the powers of Congress over the states, the Court has feasted less aggressively on Congress' legislative authority than might have been anticipated, contenting itself to snack on bits and pieces. In retrospect, liberal anxieties (including my own—see "The Gipper's Constitution," December 1999) about how far this Court would go in implementing the Reagan revolution are looking somewhat misplaced if not, on occasion, hysterical.I think the picture is particularly interesting if we focus only on the Court's decisions since Bush v. Gore. Terms like "liberal" and "conservative" are tricky, especially when you're talking about the judiciary. But my tentative sense is that, on balance, the Supreme Court's decisions post-Bush v. Gore have tended to have the overall effect of nudging the law slightly in a liberal direction. If you scroll down a list of all of the Court's decided cases from the last three Terms, see here, here, and here, that seems to be the overall trend.
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THe "liberals" on the Court are hardly that --- they are really moderates, none of them could even approach Brennan or Marshall on the "liberal" scale. Look at how many times the splits on very important issues have not followed the so-called 5-4 conservative-liberal split. Perhaps since 2000, the cases have tended slightly towards the liberal side, but overall, it has been a moderate court with a very cautious approach on issues presented to it. The federalism cases have really not turned out to be much. Morrison and Lopez all would agree were close to the line of how far Congress could go even under the most expansive interpretations of the Commerce Clause after the New Deal (in fact I think Souter said that oral argument), and with the exception of Thomas, none of the Justices joining those opinions showed any willingness to repudiate the post-New Deal understanding of the Commerce Clause and the scope of federal power in general.
No - which is why I dislike saying the Court is "liberal" or "conservative"? Is Crawford liberal? Well, it helps criminal defendants (which only "liberals" care about), but it's outcome was based on originalism (re: a "conservative" method of constitutional interpretation).
I watch 1983 and crim pro ases. Over the past ten years, the Court has made it impossible to sue the states under 1983, and difficult under federal law. Qualified immunity has nearly become absolute immunity. The police can arrest you for committing a civil infraction that does not carry jail time as its maximum penalty. Pretextual stops are okay. Etc.
So the Court has immunized the police, and more generally, the government, from liability and scrutiny. I'm not sure how a pro-state court could ever be characterized as "liberal."
I disagree. The Court has eliminated Congress' ability to abrogate under Article I. And it has acted not as a JV legislature in reviewing Section 5 abrogation, but as the head coach, ensuring that Congress had a sufficient legislative record before it abrogates. (BTW, how can Scalia be a "textualist" when he joins the decisions requiring a demonstrated legislative record - i.e., materials outside the text of the law - of state evil before abrogation is proper?)
Just so you know I'm not making this stuff up (besides, who am I to say anything?), I'll refer you to Judge Noonan's Narrowing the Nations Power.
"Qualified immunity has nearly become absolute immunity."
How do you explain Groh v Ramirez? Isn't that an important qualified immunity case in which the Supreme Court considerably tightened the scope of qualified immunity, ruling in favor of a plaintiff and affirming an outlier 9th Circuit decision? http://www.supremecourtus.gov/opinions/03pdf/02-811.pdf
More broadly, I don't think it works to pick just one or two areas of the court's decisions -- especially with areas where, as you note, the left vs. right dynamic can be hard to identify.
Their habeas decisions have been more "conservative" as well in restricting the scope of review which is mainly a result of AEDPA, but even the Court's "liberals" appear to have fully accepted the more restrictive interpretation of AEDPA that they first rejected in Williams (see eg the numerous summary reversals of the 9th).
The portion of the Court's decisions that are more "liberal" are those involving private rights of generally "law-abiding" citizens like the gay rights decisions.
As for the affirmative action decisions, I think those can just be explained as O'Connor blinking.
That's easy. The text of the Constitution is clearly established law. Since the 4th has a warrant and affidavit requirement (which I can read right now by pulling out the old Cato pocket Constitution), then only an incompetent officer or one who would willfully violate rights would not realize this. I was a bit upset, by the way, that Scalia dissented. The implication of dissenting in Groh is that the text of the Constitution does not have life until the Court breaths into it.
A Blogger writes: "More broadly, I don't think it works to pick just one or two areas of the court's decisions -- especially with areas where, as you note, the left vs. right dynamic can be hard to identify."
I agree! This is why I hate the libera/conservative label. Here is what the pundits do. Oh, Tenn v. Lane came down. Let's read it. That's a case where the Court says that disabled people matter! Let's write a big headling saying, "COURT SIDES WITH DISABLED PEOPLE." Since the Court "sided" with disabled people, and liberals support the ADA, then Lane is therefore a liberal decision.
Well, no. You know and I know that Lane was about abrogation. The Court applied the infamous congruence and proportionality test to find that Title II abrogated.
But had the Court come out the other way, the decision would have been anti-disabled people, and thus "conservative."
That seems to me a poor way of looking at things. Namely, look at the outcome. If the outcome was good for the left, then it is a liberal decision (and having enough of these makes for a liberal Court). If the outcome is good for the right, well, then it's a conservative court.
Because of that, I avoid using the conservative/liberal label. Except when I'm being lazy and don't want to cite cases and language from cases to prove a point. Or when I don't want to explain something to someone who has obviously never read a case (other than the edited ones in the case books). It is, after all, much easier to say, "Damn liberals/conservatives" then it is to figure out what the cases are about.
On a related note. To avoid the liberal/conservative discussion, I usually say to the person throwing the label around, "Hmmmm....what are three recent cases that you would consider liberal? And who wrote them?"
A Liberal Court would have: Upheld race-based quotas, discovered a right to sodomy, extended habeas corpus to foreign soil - stop me when I sound familar...
Let's build a Conservative Court, incorporate the Second Amendment, and take a hard look at the constitutionality of Social Security, in just the way the Chief suggested in his year-ender.
For instance was it really being "liberal" to uphold the 6th Amendment just because radicals in the Bush administration, finding it inconvenient, sought to disregard it?
Furthermore, does one imagine that the court will become more "conservative" should those same radicals replace outgoing justices with proponents of their interpretation of that Amendment?
David Innes
(Note: Sorry about the squirrely username. Powerblogs isn't accepting my password.)
This theory predicts a decision favoring homosexual marriage. Family law is suffering because people don't get married. They don't get married because the lawyer has made marriage untenable. Homosexuals will enrich family law with high rates of dissolution.
Scalia is not an originalist. He is a proceduralist. In Blakely, he quotes a Tory, a justifier and manager of Star Chamber proceedings. These provided an intellectual justification for the violent and protracted American Revolution. Quoting a mortal enemy of our besieged nation is not my idea of originalism.