Supreme Court Wrap-Ups:

Like the Federalist Society, the American Constitution Society held an end-of-term review that is available here. SCOTUSBlog rounds up some end-of-term analyses here, and has a statistical summary of the term here. I also can't help noting my appearance on the PBS Newshour with Goodwin Liu.

How Conservative This Court?

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.

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.

The full article is available here.

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.

Glendon and Kmiec on OT2006:

Mary Ann Glendon and Douglas Kmeic offer this Legal Times commentary on the Supreme Court's OT2006 and the roles of Chief Justice Roberts and Justice Alito.

Despite some ideological carping from those who lost cases that depended upon the extension of past decisions, Roberts and Alito have also shown themselves to be strongly respectful of precedent. Advocates this term urged overturning previous abortion decisions, a Warren Court ruling allowing taxpayers to sue in religion cases, and campaign spending limits. The new justices left those precedents in place, often resisting both their unwarranted extension to new facts and the urging of Justices Antonin Scalia and Clarence Thomas to overrule them.

This cannot fairly be dubbed faux deference. Tinker v. Des Moines Independent School District (1969) still meaningfully invites robust discussion of political and social views in school, as Alito and Kennedy strongly reaffirmed in Morse v. Frederick, even though Tinker did not protect advocacy of illegal drug use. Likewise, the allowance in Grutter v. Bollinger (2003) for race as one factor in pursuit of higher-education diversity was reaffirmed, notwithstanding the Court's rebuff of outright racial balancing.