AALS Mid-Year Meeting: The Changing Roberts Court:

This is the first of a few posts summarizing some of the plenary panels from the AALS mid-year Conference on Constitutional Law, currently underway in Cleveland, Ohio.

The opening plenary panel focused on "The Changing Roberts Court." Moderated by Lori Ringhand (UGeorgia), the panel featured Eric Segall (Georgia State), Erwin Chemerinsky (Duke/UCIrvine), and Lee Epstein (Northwestern). Soon-to-be-Dean Chemerinsky led off noting that every GOP presidential candidate for the past 40 years has sought to shift the Supreme Court through the nomination of conservative jurists. Such efforts have had little effect, Chemerinsky observed, until now. With the confirmation of Chief Justice Roberts and Justice Alito, he suggested, there is now a fairly reliable conservative majority on the court as, on most issues, Justice Kennedy appears to be "anchored" to the conservative majority.

Chemerinsky's thesis, as he described it, is that the Roberts Court should really be called the "Reagan Court," because the unifying element of the Court's conservative leanings is not a commitment to any particular conservative judicial doctrine (e.g. originalism), but a commitment to the political and ideological positions espoused by conservative Republicans in the 1980s. Further, Chemerinsky argued, the Court is not particularly "minimalist" or restrained in its approach, particularly when Justice Kennedy joins the conservative bloc. According to Chemerinsky, the Court's opinion in cases like Parents Involved and Garcetti v. Ceballos are evidence of a conservative majority that is quite willing to push a conservative agenda quite aggressively, often with little regard for precedent. I think Chemerinsky overstates his case (see my take on last term here) and, as he readily acknowledged, the current term has not produced the same sort of results (at least not yet).

In calling the Court the "Reagan Court," Chemerinsky explained, he means that (so long as Kennedy is willing) this is a court majority that consistently sides with the government over individuals when individual liberties or civil rights are at stake. As example, Chemerinsky points to the school desegregation, abortion, and religion cases. Yet this is a difficult position to square with cases like Wisconsin Right to Life, in which the conservative justices sided with the ability of non-profit groups and independent voices to challenge incumbent politicians and government regulators.

Another thing that makes this the "Reagan Court," Chemerinsky explained is its pro-business orientation. This is "the most pro-business Supreme Court since 1937." Yet as we have discussed before on this blog, this charge misrepresents the nature of the Roberts' Court's business docket. For instance, Chemerinsky cites the Court's antitrust decisions (e.g. Leegin) -- a subject he admitted he "know[s] nothing about" -- for this proposition, yet this is a pro-consumer, anti-competitor decision. It's an anti-regulation decision, to be sure, but that does not make it a "pro-business" court.

Finally, Chemerinsky said this is the "Reagan Court" because it consistently "favors executive power over separation of powers." Certainly here Chemerinsky's claim is quite strong. The Reagan Justice Department advanced fairly aggressive notions of executive power (although not always as aggressive as those of the current administration) and the conservative majority is certainly sympathetic to such arguments, particularly in the national security context. Here, however, it is worth noting that Justice Kennedy has been less "anchored" to the four conservative justices in this area than in many others and in lower profile, administrative law cases (such as Mass v. EPA) the Court has been anything but deferential to the executive branch.

Eric Segall was next, and argued that the "Roberts Court" should be called the "Kennedy Court," as he is the "key swing vote," and the only thing standing in the way of overturning numerous precedents of the Warren and Burger Courts, particularly in the context of individual liberties and criminal procedure. As Segall noted (as have many before), Justice Kennedy is the swing vote in a high percentage of cases particularly those divided on ideological grounds. While this term is shaping up quite differently, last term Justice Kennedy was almost never in dissent. Further, in many key areas, Justice Kennedy has authored the majority opinion for the Court. In many ways, Segall notes, Justice Kennedy is far more influential and powerful on the current Court than was Justice O'Connor. Insofar as Justice Kennedy has appeared to be less influential in the current term, Segall suggested, this is because the Court has (thus far) decided fewer "divisive" cases (defining "divisive" as 5-4 decisions split on ideological lines).

Segall's view is that "there are two Justice Kennedy's serving on the Supreme Court." The first is a fairly traditional justice, a moderately conservative justice who is a "formalist" in that his opinions "pay lip service to the traditional approaches to constitutional interpretation." The other Justice Kennedy, Segall noted, is the "romantic" Justice Kennedy, who grounds his opinions in sweeping first principles and focuses on the policy implications of his decisions. This latter Justice Kennedy is the one who "infuriates Justice Scalia and other members of the right wing" with his flowery language, citations to foreign sources of law, and failure to ground decisions on text, original meaning, precedent or tradition. According to Segall, this Justice Kennedy is refreshingly "transparent," because he openly acknowledges that many decisions cannot be decided without recourse to philosophical principles or policy preferences. In cases such as Lawrence v. Texas or even U.S. Term Limits v. Thornton, he relies upon meta-principles and eschews "hiding behind indeterminate legal sources." Indeed, some of these decisions don't even read like Supreme Court opinions, but ruminations on political principle. In Segall's view, Justice Kennedy is more consistent than many presume, in that his preference for more traditional or romantic approaches to decisions is rather stable, but it also keeps him in the middle for many important cases. So, Segall concluded, "in order to understand the Court, we're going to have to understand the man."

Lee Epstein offered a slightly different view: "The Roberts Court So Far: Why Conservatives Should Continue to Yearn, and Liberals Should Continue to Fear." In her view, the Roberts Court is more of a continuation of the "Republican Court" that was ushered in by President Nixon's appointments beginning in 1969 than the beginning of a new conservative or Reaganite judicial era.

Unlike the other panelists, Epstein's approach was more quantitative, focusing more on the larger trends than on individual doctrinal developments or individual high-profile cases. From this perspective, Epstein argued, that the Court began to tilt in a "conservative" direction beginning in 1969, and has remained fairly conservative since. Based on the overall percentage of cases decided in a "liberal" or "conservative" way, the Court was reliably liberal during the Warren Court, and has been fairly reliable since. Similarly, she notes, there has been relatively little change in the ideology of the median justice on the Court over the past few decades.

While Justice Kennedy is slightly to the right of Justice O'Connor on some issues, there are other instances where he was to her left, and joined with the liberal justices to form majorities while she was still on the Court (see, e.g., Roper v. Simmons. Another interesting observation is that while Justice Alito is more "conservative" than Justice O'Connor, this effect has been offset by Justice Breyer's slight migration to the left in recent years, resulting in relatively little change in the Court's overall ideological balance. Moreover, Epstein cast doubt on claims that key cases from last term would have come out differently had O'Connor remained on the Court.