In a forthcoming essay in the Wayne Law Review, "The Roberts Court at Age Three," Dean Erwin Chemerinsky makes the fantastic claim that the Roberts Court "is the most conservative Court since the mid-1930s." In the paper, he explains what he means:
What does it mean to say that the Court is more conservative than its predecessor Courts, the Rehnquist, Burger, and Warren Courts? It is notably more conservative on the issues that in our society today are often the litmus tests for ideology: abortion and race. I also believe that it will be much more conservative on issues of separation of church and state, but they have not yet been presented to the Roberts Court. Also, it is a Court that, overall, is very pro-business. The one area where the Roberts Court has not been conservative is in its rulings against the Bush administration’s actions as to the Guantanamo detainees. But this is because Justice Kennedy has joined Justices Stevens, Souter, Ginsburg, and Breyer in these cases.I believe Chemerinsky is wrong in nearly every particular. The Court's alleged rightward shift resulting from the confirmations of Chief Justice Roberts and Justice Alito has been greatly overstated, as decisions like Boumediene, Kennedy v. Louisiana, and Massachusetts v. EPA make clear. Even the claim that the Court is particularly "pro-business" is problematic, as we've discussed on this blog before.
The editors of the Wayne Law Review asked me (and others) to respond to Chemerinsky's essay. My contribution, "Getting the Roberts Court Right: A Response to Chemerinsky" is now on SSRN. While I think Chemerinsky makes some interesting observations, as in his discussion of the Court's shrunken docket and the role of Justice Kennedy, his "most conservative" claim is completely unsustainable. The Roberts Court is moderately more conservative than some of its recent predecessors on some issues, but it remains quite "liberal" on others. Particularly because Justice Kennedy is the swing vote on so-many ideologically charged cases, the Court's conservatism is quite inconsistent. I further note that any assessment of the Roberts Court, at this point, is necessarily tentative, as the current roster of justices has not yet sat together for even three full terms.
It's only a matter of perspective.
Today, John F. Kennedy would be regarded by Democrats as a wild-eyed, dangerous right-winger, to be destroyed at any cost. Look at what the party did to Joe Lieberman.
Would courts in the 1950's have upheld Griswald? Is it likely that today's Supreme Court would overturn it?
That's my three-part definition of conservative court. Your's may very well differ.
They didn't let him run as a Democrat. He's only in the Sanate because he decided to run as an independent.
In other words, putting aside questions of how to define the swing voter and assuming that Kennedy's the one: The Roberts Court is the Kennedy Court. Therefore, you can't say "there are outliers, but only because Kennedy did this..." -- Kennedy's actions are all. Therefore, as Jonathan does in this post, you have to treat Kennedy as the decider, and therefore the Court's conservatism becomes only as strong as Kennedy's own conservatism.
They "didn't let him run as a Democrat" because he lost the primary. How unfair! Down with democracy!
So citing several liberal decisions of the court is not entirely apropos. It's like pointing out that the 2003 Detroit Tigers were not the most losing team in history since 1962, because, actually, they did win some games.
But if you assess the conservativeness of the Court by the current body of jurisprudence deemed to be good law at any given time, the current Court is certainly the most liberal in history, since it decided many left-wing decisions moving the Court to the Left and did not repeal nearly as many left-wing decisions from previous decades.
Dean Chemerinsky claims that we have "the most conservative Court since the mid-1930s." In reply, your paper makes a convincing argument that the present court is not particularly conservative, but does that connect with Chemerinsky's pitch? You concede that "the Roberts Court appears moderately more conservative than its immediate predecessors"; surely, then, you must either nominate another candidate as the most conservative court since the mid-1930s, or reject the entire enterprise of comparing courts on this scale.
In other words, if this isn't the most conservative court since George Sutherland retired, which was? Your paper never gets around to saying, and it doesn't seem to reject the validity of the comparison. Doesn't a convincing reply to Chemerinsky have to carry the burden of doing one or the other?
You and Observer are arguing against a claim E.C. didn't make. You want to discuss whether the court is conservative by your particular lights.
The question is whether the court is more or less conservative than other courts since the 1930s. Put me down as another one curious as to which court that might have been.
And we should also be mindful that a court should be judged relative to their times.
Of course any court today would be more liberal than a court from a hundred years ago based on absolute judgments. Of course society as a whole is far more liberal today than a hundred years ago.
Is there any chance that a court today would rule the same as in Gobitas or Korematsu?
It also seems unreasonable to claim that a court is not conservative, or liberal, because you can point to a small handful of cases in which the ruling belies the claim.
Can you remind me when, exactly, Kennedy spoke at the Republican convention in support of the Republican candidate for President and/or campaigned on behalf of and gave monetary contributions to down-ticket Republican Congressional candidates in an election year?
What does this mean? Does he mean "conservative" as in libertarian-conservative or "conservative" in the sense of the religious right?
That's why these liberal/conservative labels have limited utility.
When did Prof. Adler become such a hack? I remember his having some good blog posts in the past, but as we've now seen in multiple comments, he calls a claim "completely unsustainable" without being able to name a single counterexample.
I don't pretend to know the answer myself, but Prof. Adler *does* so pretend ... and a pretense is all we've been given, thus far.
Name the more conservative court, or apologize to Prof. Chemerinsky. Those would seem to be the options.
Today's Democratic party is clearly to the left of the Communists of the 1960's, if you compare their positions on offshore drilling!
Therefore, contrary to what Professor Adler said, Chemerinsky's claim is not "fantastic." It is right.
Since 1968, we've had generally conservative/moderate conservative Republican presidents, except for Carter and Clinton (who was a moderate Democrat), the former of whom had no SCOTUS nominations and the latter of whom nominated moderate liberals. It would be very surprising if the Court weren't conservative as a result.
Chemerinsky's point seems pretty obvious to me.
As Uh_Clem notes, "conservative" is kind of confusing. Suppose Locke v. Davey (upholding a state-imposed ban on using a generally-available scholarship to fund education in theology) came out the other way. Would that be conservative?
Well, it would certainly please many religious conservatives.
But it would not be a jurisprudentially conservative result in that it would overturn a longstanding understanding of the 1st Amendment.
It would gut many ancient state constitutional provisions and force the states to do something they have not wanted to do--not exactly federalism, which is imagined to be part of a conservative agenda.
It would involve unelected federal judges telling elected legislators what to do, which again is something conservatives tend not to like.
It would also make government entitlements more broadly available, which isn't exactly small-government conservatism.
So what would have been the conservative result in Locke?
First, I address many of these arguments in greater depth in the paper. Among other things, in the article I note that one way the Court could be considered more conservative is that, overall, it is less inclined to move the law in a "liberal" direction than most predecessors. I further note that any such claim has to be tempered due to a) the limited number of cases upon which to form judgments, and b) the malleability of the terms.
Second, as the quoted passage above illustrates, Chemerinsky's claim is more aggressive than simply claiming that this court is the "most conservative" because it is the least liberal. He goes further to claim that the Court is "notably more conservative" than its predecessors, so he is also making a claim about the degree of difference, not just the direction.
Third, I think there are many courts that are more "conservative" than the current Court, as Chemerinsky defines the term. Certainly the Courts of the 1940s were more conservative on virtually every issue of relevance, particularly on executive power. Of course, such comparisons are difficult to make given the time frame.
Looking more recently, the early-mid Rehnquist Court was also at least as conservative as the current Court. It was more conservative on federalism (both on commerce clause and sovereign immunity), executive power, regulatory takings, standing, and capital punishment; no less conservative on abortion (Casey) and race (Adarand, Croson) -- too issues Chemerinsky highlights -- and arguably no less conservative on criminal justice issues given the Court's recent sentencing and confrontation clause holdings that counter-balance increased conservatism in other areas.
Where the Court might be modestly more conservative is in some church-state cases (though this is speculative), preemption, and its stinginess in finding implied rights of action or reading statutes so to allow claims to go forward (e.g. Ledbetter). However, the leftward jurisprudential shifts under this Court with regard to standing, capital punishment and executive power in particular are far greater, and more consequential, than any alleged rightward shift on these issues or others that Chemerinsky identifies.
Finally, in judging whether the Court is "conservative" than the times, I note that on most key issues the Court is either in line with, or slightly to the left of, popular opinion.
JHA
I think Adler's point is that:
(a) it's too early to be making this judgement
(b) there isn't enough evidence to be making such sweeping generalizations
(c) even if we disregard (a) and (b) above these types of evaluations are inherently shaky given the nature of the Court and the shifting attitudes of those who view it.
It's kind of like saying Albert Pujols is the best baseball player in the past 75 years. For starters the guy is only 28 years old and hasn't yet completed half of his career. And secondly, even in a sport that provides a wealth of hard numbers to measure performance, labeling some player as the "best" is probably too subjective a claim to be taken definitively. How would you measure Pujols' treasure chest of MVPs against Cobb's .365 average, Ruth or Bonds' Home Runs, Maddux 20 year mastery of the strike zone or Mantle's 5 tool ability and idoltry in the eyes of every kid in the country?
I mean feel free to have a discussion about it at your next cocktail party, just don't expect any sort of rational validity to emerge.
I agree with the above poster. This wasn't academic scholarship; it was a political manifesto aimed at Obama's potential/desired reshaping of the Court's ideology - an issue that was largely ignored during the campaign.
I will also add that attacking a court for being too "conservative" is often a reflection of the court accurately interpreting LAWS (those pesky little things drafted by legislative bodies) that were too conservative for someone's liking, whereas being too "liberal" is often code for a willingness to ignore precedent, overstep your bounds or just completely make stuff up out of whole cloth (Miranda, Roe, etc). Yes, I know EC and others aren't adressing the merits of one or the other just proclaiming that A is more conservative than B, C or D, but the subtle implications are there.
And because Chemerinsky ignores this second approach, he mistakenly focuses on 5-4 "ideologically divided" cases.
Incidentally, Chemerinsky is also disingenous when he says that the court is "conservative" because it is "pro-business" because it has voted to restrict punitive damages. But of course that has been a liberal project, not a conservative one. He notes that Alito and Roberts joined the liberals in the most recent Phillip Morris case, but somehow comes up with the muddled conclusion that this proves conservativeness of the court.
And this choice makes sense. Whether the court has become more or less conservative in any absolute sense is much less interesting than how its position relative to public opinion generally, or to the average opinion of Congress &President has changed.
BTW, I'm not sure how restricting punitive damages has ever been a "liberal project". AFAIK, trial lawyers are a traditional centre of support for the Democratic party, while one only has to look at last term's Exxon Valdez case to see how big business, a traditional constituency of the Republican party, might benefit from "tort reform".
Judicial limitation of punitive damages has been a "liberal project" in the sense that it has generally been the more liberal justices, including Stevens, Souter, and Breyer, who have championed it, while the justices whom most would agree are the most conservative, Scalia and Thomas, have consistently refused to vote for it. Last Term's Exxon v. Baker was sort of sui generis, but even there you have Souter writing the opinion.
It seems to me that Roberts is also one vote short. The reality is that I suspect that the Court is always "one vote short", i.e., the tendency is for some justice to step up and be the swing vote in any court.
I see. So a conservative interpretation of the law is accurate whereas a liberal interpretation of the law is overstepping the bounds or making things up? Good to know that you don't allow your own biases to control your views.
David Nieporent,
What is the point of using an absolute standard?
Using the Taney Court as a standard then the Fuller court was downright radical.
The problem with using an absolute standard is that future courts will almost ALWAYS be more liberal than their predecessors, since our society almost unerringly moves to the left over time.
Would the Fuller Court ever consider ruling for the state in Loving?
The political terms conservative and liberal are fairly easy to define in the context of the court. But they are based on the contemporary standards of the time. So the definition is consistent the context is ever changing.
You are arguing for a reactionary court, not a conservative one.
Curious. I usually see it advocated by right-leaning think tanks. (Although I guess they don't advocate "judicial limitation" per se.)
Exactly. IMO, Conservatism not opposite "Liberal" thought but "Progressive" or "Innovationist" thought. Think "Pindar" instead of "Sophocles." By this measure, I think the court has been gradually growing more conservative since the 60's and Roberts is more conservative than Rhenquist, and his impact has shifted the court noticeably towards judicial minimalism.
But law is supposed to be conservative by this measure. I just don't like it to be partisan (trying to get judges there that will overturn unpopular precedents just because they are unpopular, not necessarily because they are bad law).
There's a hidden assumption here, namely that liberals are less bound by stare decisis. Otherwise, the liberal courts of the period 32-68 would have been just as bound by the decisions of the Sutherland Court as today's court is bound by Warren/Brennan/Marshall.
Your assumption may very well be correct, but you haven't shown that. In any case, deference to precedent isn't what Chemerinsky meant by "conservative"; if that were true, it would be plausible to argue that liberals today are the "conservatives" simply because they want to retain the liberal decisions of the previous era.
There's always a lag between electoral results and the composition of the Court because of judicial tenure. What this means is that the Court is most out of step with public opinion at the end of an era (i.e., shortly after transition elections). That seems to be what Chemerinsky is getting at, so he's right -- this is the end of the conservative era which began in 1968, so the judges have mostly been appointed by conservative presidents (true) even though the electorate has now moved left (plausible). Similarly, the Court was most liberal, relative to the electorate in 1969 or so.
Isn't that all that matters these days?
I think some are forgetting just how conservative the Rehnquist Court was for a short time in the 1980s. Think basic gay rights (Bowers), the death penalty for juveniles, abortion (before Kennedy and O'Connor went to the left on the issue), etc. Kennedy is significantly more liberal now than O'Connor was at that time in her career.
Bowers, of course, was decided when Burger was still CJ. The Court got even more conservative with the addition of Kennedy and Scalia. I'd say that the Court after those additions was significantly more conservative than the one we have now. Kennedy was a reliable conservative vote.
How did the balance of court change significantly during that time period.
Brennan begat Souter
Powell begat Kennedy
Blackmun begat Breyer
Certainly Thomas pushed the court to the right but that was in the 90s when Casey was decided.
No doubt they were; Watergate distorted the usual sequence. The longer the historical perspective we get, the more accurate we can be.
I'm not saying that a new liberal era is about to begin. I do think that's likely, but obviously we'll have to see how it works out. What I am saying is that Chemerinsky's point seems to be based on at least some version of such an argument, and it's at least plausible. There's no doubt that (a) we've been in a long cycle in which conservative presidents appointed justices; and (b) we just had an election in which the more liberal candidate won. That makes the disconnect between justices and electorate pretty high, which seems to be Chemerinsky's point.
I don't think we disagree. I was imprecise in my language. Sorry. What I meant was that in the 1940s the Court was far more conservative on the question of executive power during wartime than it is today. You are certainly correct that the Court had a very expansive view of domestic executive authority at the time, and that this was considered to be a "liberal" position at the time (and, I might note, might still be considered "liberal" insofar as it rejected a formalist, unitary conception of the executive).
JHA
Does Chemerinsky discuss the 1940's and 1950's courts in his article, or is it simply 1930's, Warren Court, and the Court today?
Since Chemerinsky's working with a three-year period, he would have to show that every three-year period is less "conservative," which he can't do.
If you take issues like abortion, gun rights, campaign finance reform, who do you think are more happy with the court--liberals or conservatives?
So there's no doubt you can say the court agrees more with 'conservative politics' than it has in a long time.
That's the simple issue.
The problem is not only trying to relate conservatism and liberalism to some grand historical timeline, but also whether it's relevant.
Over a short time the political dialogue --including the dialogue on Constitutional issues--- may move more towards the right or more towards the left, but in the long run it moves towards the center. So, the relevant question is whether the current court is more centrist than the previous court.
On most issues I think its more towards the center. I don't see the court as willing to overturn decisions like Roe v Wade, but willing to make judgments that keep them in check with other relevant legal considerations.
My own opinion is that we are about to see a fundamental shift in political discourse in the US. I don't know if it is a liberal or progressive age, and indeed I hope not. But the fact is, this election has shaken both Democratic and Republican political alliances in ways which were not seen in recent history. This would have been the case even if McCain had won.
I don't think it will be a simple as a shift to the left. We may see a change in orientation towards the left, coupled with a continuation of a conservative methodology (this is what I actually hope for). We could just as easily see a continued trend away from fiscal responsibility and towards big government in al areas. We will have to see. However, this is more profound than a simple shift away from conservatism and is more likely to cause political labels to be substantively redefined.
I think that's basically right, but the Brandeis comparison exposes the limits and ultimate futility of this kind of exercise. Where would Brandeis stand today if he were 50 years old and the last 100 years (including his own early 20th century jurisprudence) were in his historical context? Who knows? It's like Babe Ruth - Barry Bonds comparisons. Too much changes over time to answer those questions intelligently. The only apples-to-apples comparisons are contemporaneous.
By that standard, the current (Kennedy) Roberts Court is as Mark Field explained, the latest in a series of incremental moves to the right during the only period since WWII when the trend wasn't left. In other words, Chemerinsky gets it about right.
I agree. JMHO, but I believe the shift will re-define what it means to be "left" and "right". That means current identification won't necessarily be a good indicator of how matters will be perceived some years from now.
I, of course, plan to cling desperately to my soon-to-be-outdated views. Whatever they may be.
I asked in my review of the panel that Chemerinsky not be invited back. He was as bad a speaker as then California Lieutenant Governor Mervyn Dymally was as the commencement speaker at my gradauation from Hastings in 1975, and that is saying something.
I agree, though, with the tenor of Mark's first point - Dean Chemerinsky's claim is not so implausible considered from the perspective of presidential appointments. Indeed, that point also supports the claim that some of the earlier Rehnquist courts were more conservative than the current court, especially if one considers the moderates and liberals appointed in the late 1980's and early 1990's (e.g., Kennedy replaced Powell, Souter replaced Burger, Breyer replaced Blackmun, Ginsburg replaced White).
I think that the argument about the 1940's courts is a bit of a canard. Certainly, on individual issues prior courts have been more liberal or conservative than the current court. However, in the 1930's and 40's liberals were more than happy to give FDR all of the power he wanted. Indeed, it is not unreasonable to claim that the current conservative taste for executive power comes from their success in that area of the electoral arena, and that when the current era passes, conservatives will rediscover their historical distaste for concentrations of power.
Besides O'Connor joining Stevens' opinion in Groh, which basically stood for the proposition (if you read between the lines and followed the oral argument)that the court was unwilling to do away with the exclusionary rule in a case in which a component of the fourth amendment would be left categorically unprotected, you can tell from Justice O'Connor's comments at oral argument that she was very stongly leaning to vote for Hudson.
Where do the views of Republicans of 1960 stand? The nation could use a man like Henry Cabot Lodge, Jr. today.
"Mister we could use a man like Herbert Hoover again. Those were the days."
Calderon's completely correct about the courts of the late 40s and early 50s. After Rutledge and Murphy died in 1949, Black and Douglas were basically in lonely dissent for several years, with the other seven Justices all being center-right to conservative. Even after Warren arrived in 1953, with high profile exceptions like Brown, the "Warren Court" era as we now know it really didn't get off the ground until Brennan joined during the 1956-57 term.
If one can forgive Chemerinsky of forgetting the long-gone, oft-forgotten early fifties, it strains credulity that he should forget the late eighties and early nineties. Look at Bowers v. Hardwick, Penry v. Lynaugh, and Stanford v. Kentucky. Although these were overturned prior to the start of the Roberts court, Roberts and Alito would have made no difference had they been on the court, since each time Kennedy was the swing vote to overturn.
Back in those days, conservatives were the ones overturning recent, controversial precedents. Witness Payne v. TN from 1991, boldly and shamelessly overruling SC v. Gathers from two years earlier. Now, controversial recent cases like FEC v. McConnell and Stenberg v. Carhart don't get overturned, but are inexplicably left standing by new cases that might be overruling them sub silentio, but there's no way to know for sure.
To get an idea of how conservative these courts were, just read Linda Greenhouse's July year end reviews of the Court for 1989, 1990, and 1991. My goodness, Ward's Cove, Wilks, and Patterson, from 1989, were so diabolically right wing that Congress had to pass a new civil rights act. And how about abortion? In late 1991, it was merely a question of when, not if, Roe would be relegated to the dustbin of history. Even in 1992, when the Court stunningly reaffirmed Roe, seven out of the nine Justices at least as "conservative" as Kennedy is today.
Hopefully, Adler's article will correct Chemerinsky appropriately