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.The full article is available here.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.
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.
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The primary difference between Roberts and Kennedy and the other three is that R &K pursue their ideological agenda with creeping incrementalism in the overthrow of long established precedents -- Thomas, Alito, and Scalia just want to wipe out the entire history of American jurisprudence to re-interprete the Constitution in a way that conforms to their ideology. And what is especially disturbing about this court is its willingness to make radical reinterpretations of the law by the narrowest of margins.
There is good news, however, if you are a defendant convicted of a crime --- the willingness of this wingnut coterie means that every question of law is now "close" enough to require that no one be sent to jail pending an appeal to the gang of five.
You reveal your ignorance by calling Kennedy "far right wing." I don't know of a single reasonable court-watcher who would agree with that characterization. As to the rest of your comment:
"Everyone in the room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul."
Seriously, though--how do you expect anyone to take your prognostications on someone's "ideological agenda" seriously when you yourself clearly have one as well?
I respectfully disagree with you. There is a little thing called Article V in our Constitution, which reserves the right to amend its provisions to THE PEOPLE. The justices you evidently admire didn't agree, and evidently felt that it was their right and duty, as such clearly superior beings, to re-write the "living" constitution as happened to fit their whim at the moment. Post Wickard v. Filburn, constitutional jurisprudence has been a kind of treason, with an unelected elite literally stealing power from the people. If you like to live in an oligarchy, I guess you would think that was ok. Having known a couple of SCOTUS justices, I don't. While high i.q. individuals, they don't come much more fallible, ignorant, or vain.
LongSufferingRaidersFan:
Exactly and that provision of the constitution prevents conservatives from retroactively making the constitution demand a strict constructionist or originalist type approach. While I think some of the 'liberal' court deciscions were a bit far out (Roe v. tho I approve of abortion as a policy matter) in general there approach is closer to that anticipated by the founders than Thomas's strict adherence to what the laws meant at the time.
I beleive it was back when the court decided that "separate but equal" wasn't such a good idea...
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You reveal your ignorance by calling Kennedy "far right wing." I don't know of a single reasonable court-watcher who would agree with that characterization. As to the rest of your comment:
lets look at the first year I could find.... 2002.
Of the 15 cases in which there were 5-4 decisions, Kennedy voted with Scalia, Rhenquist, Thomas, and O'Conner six time to form a majority. More importantly, in four cases, Kennedy was in the minority with Scalia, Rhenquist, and Thomas. (O'Conner was the true "swing" vote.) In fact, only once in those 15 cases did Kennedy not vote with far-right winger Rhenquist, and only twice did Kennedy vote with the truly moderate Souter.
O'Conner was in the majority in 13 of the 15 cases, making her the true "swing vote". One justice (souter) was in the majority 9 times, the other seven were in the majority either 7 (the 'liberals' Stevens, Ginsberg, Breyer) or eight (the far [Rhenquist, Kennedy] and extreme [Thomas, Scalia]) times.
2002 USSC stats
1) I suspect the Roberts/Alito minimalist approach is laying the predicate groundwork for more sweeping doctrinal changes.
2) While Kennedy does stunt the conservative tide, he votes more often with them than not. We saw in this term a clearly more conservative court.
3) While it will take one more change to unleash the tide, it is a logical fallacy to give more weight to the straw that breaks the camel's back than the preceding straws. Alito-for-O'Connor is every bit as strong a conservative shift as Rogers-Brown-for-Stevens would be.
The evidence for this is that their votes, if not their reasoning, are uniformly conservative in contested cases. True minimalists would be more unpredictable, occasionally feeling compelled to uphold controversial policies they disagree with or (if respect for precedent can be called "minimalism") to follow rather than distinguish precedents they don't like.
No they're not. They just pretend to follow precedent while overturning it.
That's my definition, and as far as I'm concerned, this SCOTUS is very far to the right. Frighteningly so.
My own dream is that people will stop trying to co-opt MLK's legacy to argue against affirmative action, when he was an unapologetic supporter of affirmative action.
Most people's only recollection of MLK is his "I have a dream" speech. Your view appears to be that his dream speech is just political BS that should be ignored.
We'll have a right-wing court only when Roe and Miranda have been overturned.
I mean, Roe v. Wade is still on the books, to the humiliation of any decent student of either the law or the Constitution. It's more fit for a one-act farce than a court ruling. It could, in fact, rank among Shakespeare's tragicomedies, as I'm provoked to both laugh and cry upon reading it.
What stops the conservatives from overturning Roe is that they don't have the votes. Kennedy believes it should remain good law.
Now perhaps Roberts and Alito do too, but I have my doubts. What makes anyone think that if another anti-Roe judge joins the Court and the issue is squarely presented, that Roberts and Alito won't vote to overturn Roe?
The definition of a judicial "minimalist" is a judge who issues narrow rulings that decide the case at hand, but do not necessarily establish broad sweeping principles. In this regard, Alito and Roberts have shown themselves to be the most minimalist judges on the Court. This does not mean that they are always minimalist in their rulings, but they are so more often than anyone else.
It is also true that Roberts and Alito are quite conservative, but this does not make them any less "minimalist." What distinguishes themselves from Thomas and Scalia is their preference for narrow rulings, and reluctance to overturn precedent or announce legal principles when unnecessary to decide the case at hand.
Justice Kennedy is more moderate than either Roberts or Alito, but he is not more of a "minimalist." See, e.g., his votes in the WRtL case, Panetti, and Mass v. EPA, and his willingness to overturn precedents and announce broad principles in other cases (e.g. Lawrence). This does not make Kennedy wrong -- I sometimes prefer his approach to Roberts-Alito "minimalism" -- but it does make him far less of a minimalist.
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." Yet I would challenge those who disagree with this claim to identify another sitting justice who is more wedded to precedent, across the board, than Roberts and Alito. It may be that none of the current justices is particularly consistent in his or her fealty to stare decisis, but on a relative scale, is there any justice one could plausibly argue supports prior precedent more than the two newest members of the Court?
JHA
Given the fact that each of the other justices have been on the Court for several years, that seems like a rather tall research assignment, particularly where you're the one who made the affirmative claim that these two are the most precedent-friendly justices on the Court. In your article you just let that claim hang there without actually providing any supporting data.
My point, which I don't think you addressed, is that these two pay lipservice to stare decisis while effectively overruling precedents willy-nilly. The distinctions drawn in the abortion cases and the taxpayer standing cases, for example, are strained to say the least. And let's not forget voting to undo fifty years of desegregation law while pretending not to be overturning anything.
This doesn't just miss the point, it's dead wrong. A "minimalist" who guts precedent with a scalpel is no more a "minimalist" than one who uses a broadsword. The true definition of a "minimalist" is one who makes incremental changes in the law. By this definition, Roberts and Alito don't qualify at all. They are willing to make MAJOR changes; they just recognize that they can get a lot further with kind words and a gun than they can with kind words alone.
I think that the essential issue here is whether giving mere lip service to a precedent while ignoring the obvious meaning of the precedent constitutes "respect for precedents." IMHO, Roberts and Alito are the equivalent of people who say they are dieting, then pig out by eating a dozen "lean cuisine" meals at one sitting.
I find it ironic that when contrasting Kennedy to Roberts and Alito, you give Kennedy's opinion for the court in Leegin Creative as an example. Surely overturning an almost 100 year old economic precedent of statutory construction is quite maximalist, but it is just as so for Roberts and Alito who joined Kennedy's opinion as for Kennedy himself.
First, the claim that Roberts and Alito "pay lipservice to stare decisis while effectively overruling precedents willy-nilly" is not merely an overstatement, it is wrong.
In my view, the claim that they are hiding "major" doctrinal challenges in the language of judicial minimalism is also overstated. Let's look at a few of the cases (and, note, there are only a few cases to argue about, which I believe further supports my underlying point).
In Hein, for instance, Roberts and Alito refused to overrule Flast, but construed it narrowly, as had been done in prior cases. I find the basis for distinguishing the two cases unpersuasive (and would have preferred that the Court overrule Flast), but the Alito opinion did not cut back on Flast or otherwise overturn precedent, and the decision did not result in a major change in the law of standing.
In the school race cases, the decision is likely to have a significant effect on school districts, but it is difficult to argue that it produced a major effect on well-settled precedent. This is an area of hotly contested, and inconsistent, doctrine. Moreover, there is language in the Roberts opinion that goes out of its way to distinguish these cases from the university affirmative action cases so as to further limit its doctrinal impact.
In the partial-birth abortion case, for instance, Roberts and Alito arguably overturned Stenberg, but preserved the underlying doctrine, and refused to join Thomas and Scalia's call to remake abortion jurisprudence. The Casey "undue burden" test (which Stenberg arguably misapplied) remains in place.
In the campaign finance case, Roberts and Alito cut back on one of the holdings in McConnell without directly overturning it. This is often going to be the result of a successful as-applied challenge to a law that survived a facial challenge. (See, e.g., what the Court did to the federal arson statute in Jones v. U.S., a unanimous opinion from several years back). Note further that the Court had already held that as-applied challenges to the statute were permissible. I also do not believe this can be characterized as a dramatic shift in longstanding doctrine.
Furthermore, in looking at Roberts and Alito's judicial record, one has to look at more than just the two or three most controversial cases. So, for instance, in Wilkie the two again refused to join the mroe aggressive and limiting Thomas-Scalia concurrence in favor of Souter's opinion. Here, as in some other cases, I disagree with their conclusions, but I think my characterization of their approach to the law is accurate.
I also think it is important to recognize that there is a meaningful difference between directly overruling a precedent and reversing the course of Supreme court doctrine and chipping away at a precedent over time. The end result in fifty years may be the same, but the effect in the interim can be quite different, and there are strong arguments that the slower, more evolutionary, "minimalist" approach is to be preferred in many contexts. Whether or not one subscribes to these arguments, however, I think it is important to recognize that this approach to precedent is meaningfully different from less deferential, "maximalist" or "idealist" approaches to precedent.
Finally, on Leegin, my point in that part of the article was to illustrate Justice Kennedy's "maximalist" streak by pointing to opinions from various substantive areas in which he joined Justices on the left as well as those on the right. I also think that given the common-law nature of antitrust jurisprudence and the well-established grounds for reconsidering precedent, it was the least "maximalist" decision of those I cite in that portion of the piece.
JHA
Where was the respect for stare decisis in the Lawrence v. Texas case? Where was stare decisis in Brown v. Board of Ed? Where was stare decisis in Roe v. Wade? Where was stare decisis is Baker v. Carr? Where was stare decisis in the juvenile death penalty case?
But if a later Court questions the application of some of those expansive rulings in certain circumstances, then that Court is "far right" or "extremist." In other words, Constitutional adjudication is a one-way ratchet that turns only Left. That's both silly and pernicious.
Roe is still the Law of the Land, guys. It shouldn't be, but it is, and in that context your complaints are weak.
The cries about Leegin are humorous to anyone with a knowledge of antitrust law. The economic literature overwhelmingly supports the decision and makes Breyer's dissent surprisingly unsupported. And why Stevens, Souter, and Ginsburg should go along with it is a mystery. This isn't Constitutional litigation, and it's unclear why the same 5-4 division should appear in Leegin. Maybe that split has just aroused too many hard feelings among the Brethren.
Roberts and Alito are indeed judicial conservatives -- as advertised, for heaven's sake -- but in the mold of the second Justice Harlan rather than Scalia and Thomas. The commenters who depict them as "far right" and "extreme" quite simply don't know what they're talking about.