Supreme Uncertainty

National Review Online: Will Chief Justice Roberts Turn the Supreme Court Conservative?

(CBS)  This column was written by Jonathan H. Adler.

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It was perhaps inevitable that Linda Greenhouse of The New York Times would proclaim the Supreme Court has become the "Court that conservatives had long yearned for and that liberals feared." The replacement of Justice Sandra Day O'Connor, a moderate and increasingly inconsistent pragmatist justice, with conservative minimalist Samuel Alito ensured a modest change across many areas of legal doctrine. Yet it is an exaggeration to report a "steady and well-documented turn to the right" during the 2006-07 term, as did the Washington Post in an end-of-term review.

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 two newest justices have undoubtedly had an impact, however. Both Bush nominees bring powerful intellects and strong principles to the Court. Chief Justice Roberts has much in common with his mentor, the late Chief Justice William Rehnquist, but Justice Alito is both more conservative and consistent than was Justice O'Connor. Nonetheless, the change has been anything but revolutionary. Most of the Warren and Burger Court precedents that most stoke conservative ire remain on the books.

In many respects, this year saw the emergence of the "Kennedy Court," with all that implies. As the swing justice, Justice Kennedy was able to dictate the outcome in many cases. He voted with the majority in every one of this term's 5-4 decisions, even those that were not decided along ideological lines. But even when he did not cast the deciding vote, Justice Kennedy was almost always in the majority. The Court decided 68 cases after oral argument this term, and Justice Kennedy dissented only twice, according to end-of-term statistics compiled by the folks at SCOTUSBlog. Chief Justice Roberts, by comparison, dissented eight times, and Justice Alito 10, whereas Justices Thomas and Souter each had 16 dissents. Justice Stevens was the most frequent dissenter, voting with the minority 26 times.

This term's docket included many cases in which Justice Kennedy joined the four more-conservative justices in many high-profile cases, but a single term does not produce a representative sample. A different mix of cases would likely produce quite different results. On questions from sexual privacy to capital punishment to executive authority in the war on terror, Justice Kennedy often joins the more liberal members of the Court. On still other issues, including federal preemption and state regulatory authority over interstate commerce, the Court is closely divided, but not on traditional ideological lines.

Justice Kennedy is the least-likely member of the Court to uphold government restrictions on speech. Thus, he joined Justices Scalia and Thomas in urging the Court to overturn portions of the Court's 2003 decision in McConnell v. FEC and void federal limits on political advertising adopted as part of the McCain-Feingold campaign finance reforms, rejecting the incremental approach adopted by Chief Justice Roberts that would have preserved the recent precedent. He also joined Justice Alito's concurrence in the "Bong hits 4 Jesus" case, to ensure the Court's ruling would not permit limits on political speech by students.

If Roberts and Alito are consistent minimalists, Justice Kennedy has a "maximalist" streak. Kennedy joined Justice Stevens' opinion for the Court in Massachusetts v. EPA, effectively ordering the Environmental Protection Agency to regulate greenhouse gas emissions from motor vehicles. This decision could have profound implications, particularly for the law of "standing." It invented a new doctrine of "special solicitude" for state attorneys general who wish to sue the federal government. He also wrote the majority opinion in Leegin Creative Leather Products v. Psks, Inc., overturning a decades-old antitrust precedent, and another in Panetti v. Quarterman adopting an innovative and expansive interpretation of federal law allowing convicted criminal defendants to file additional habeas corpus petitions.

Many commentators suggest that there was an unusual level of rancor and division in the Supreme Court this year. Simon Lazarus complained of "an unprecedented avalanche of 5-4 end-of-term Supreme Court decisions," in The American Prospect, and the Washington Post editorialized that the Court "seemed more fractured than ever." Such claims, like the proclamations of a conservative ascendancy, are overstated.

Only one in four decisions was unanimous, and one in three was decided 5-4. This is hardly an unprecedented level of division, however. The level of unanimity was even lower during the 2004-05 session. That term the number of 5-4 decisions also reached 30 percent (as it did in the 2001-02 session). If anything was unprecedented it was the unusually high percentage of unanimous rulings (45 percent), and low number of 5-4 decisions (13 percent) during Chief Justice Roberts' first term that inflated expectations. The 2005-06 unanimous rulings in cases challenging abortion restrictions and the Solomon Amendment were more unusual than the split decisions of the term just past.

This is not to deny the very real doctrinal divisions on the Court. The justices are closely split on many issues, ranging from criminal procedure and federalism to race and the status of unenumerated rights. SCOTUSBlog’s analysis of the "rate of dissension" — a measure of the number of dissents per case — found the 2006-07 term the most divided in recent years, barely edging out the 2001-02 term, 1.82 dissents per case to 1.81. This and other measures of the Court's may be magnified by the Court's ever-shrinking docket, however. Where once the High Court heard 100 cases a term, the justices only accepted 72 for 2006-07. As the Court grants fewer cases, those that remain on the docket may be more difficult, contentious, and closely fought on the margin. The oral statements from Justices Ginsburg and Breyer delivering dissents in high-profile cases may have been unusual, but they were decidedly mild compared to some of the fiery statements from prior years, as when the Court handed down its decisions in two abortion-related cases, Stenberg v. Carhart and Colorado v. Hill.

Last Friday, after the term ended, the Court agreed to hear another case concerning the legal rights of Guantanamo Bay detainees in the 2007-08 term. This was unusual because it required the Court to reverse course, granting rehearing of a petition the Court had already denied earlier this year. This means that at least five justices were willing to hear the case — as opposed to the usual four. It may also indicate that five justices are skeptical of the legal the Bush administration’s legal arguments. If so, this is another sign that reports of a conservative judicial revolution are a bit premature, and that this remains a Court worth watching.

[jimmyc1955]

3- explain what you will do to prevent the american economy from being dictated to by foriegn governments. Keep in mind - they don't like you, your progressives or anybody else any more than they like Bush. So don't delude yourself you will be able to reason with them - people who fund others to fly 757s into tall buildings are not reasonable people.

Remember - it will take a very, very long time to get even a modest percentage of the US fuel requirements compensated for with alternative fuels. When whole industries shut down and unemployment rises very, very high, the cost of food sky rockets - what will you do to prevent guys like Chavez or Saudies from dictating how YOU will live your life?

Like I said the first time - before you overthrow anything - you better have a real, honest plan. Cause nut cases like you only know they don't like what they have - but they never know what it is they will like - they can only tell you what they don't like. Those are two very, very different things.

[jimmyc1955]

glb1969 - Well - when you eliminate all corporations, eliminate big box stores and prevent big oil from international searches for new oil, tell me how you will:

1- Handle the millions of people who used to make good wages working for those corporations who now need government help- and how you will prevent the collapse of the houseing industry when all those over leveraged houses flood the market and what hyou will do for all those people whose retirement accounts and pension plans become suddenly worthless.

2 - explain to all those working people who are just getting by now that they will have to pay 50% more for their basic necessities when they go back to buying from the small mom and pop shops who barely made a living as it was. tell me how you will compensate families who might have enjoyed a few more modest luxuries at the big box prices but now will have to do without them because the price is too high

[glb1969]

Thanks! I am glad some people here remember that despite the recent attempts by the supreme court, this is still a country of the people by the people and for the people, and that we people have the right to freedom of speech!

Alas, your geographical guess is way off, I am a western Massachusetts progressive! (where we know how to throw out a repressive government when they start stealing our freedoms!)

[jimmyc1955]

glb1969 - I love your post! Part right wing crazy from the backwoods of the Dakotas and part crazy liberal from San Francisco!!

I bet you have a bust of Thomas Jefferson in your house and that silly quote about patriots, trees and blood tattooed on your forehead.

I don't know what your going to overthrow - but I would wager that what you think you want if you were to overthrow the government would not be anything like what you would get. A cross between the terror of the French revolution and pure anarchy would be about all that could be expected.

But its American - your free to hate anybody you want and in your case I bet thats a lot of people.

[glb1969]

Just a reminder that when we the people start our second american revolution for freedom, there are three branches of government beholden to corporate interests that must be overthrown and purged. The people will no longer stand for such blatant corporate manipulation of the law. Our resistance will not be futile, and all obstructionists will face true justice at the hands of the people they once repressed. Our resistance will not be futile!

[jimmyc1955]

grumpas - Sure its a political agenda - though you won't like the answer I am about to give because it will violate your srongly held stereotypes of the two parties and their philosophies

Conservatives believe in individuals more than in group dynamics. We believe each individual show have the maximimum control over their lives, and their properity - since property rights were a key reason for the revolution in the first place.

Liberals believe in large group social dynamics and that those groups, as defined by any number of convenient characteristics, income, race, genger, age. . . can and should be protected, led, managed or manipulated for the greater good.

Since LBJ and the Great Society were launched in the mid 1960s this group dynamic manipulation has brought ruin to one race group and mass frustration to all.

Yes - there is bigotry, hatred and ignorance in America - and it has always been there. You can't legislate against stupidity. We have laws to protect individuals - we don't need laws to protect groups.

[jimmyc1955]

So - for a change the courts aren't MAKING law from the bench- what a refreshing change. After 30 years of social engineering maybe we can get back to using the Constitution as the basis for decisions rather than EU regulatory findings - and previous courts were fond of doing.

And maybe it's time the courts went back to deciding cases on precedent and constitutional review rather than how to use law to make society behave as sociologists in elite eastern universities formulate it should.

What I hear the most whining about is that the courts have been the only reliable means of implementing social change as liberals think it should be enacted. Now it's not so easy to mess up peoples lives in order to suit some grand design created by ego and hubris.

[grumpas]

CarlyLaine: At the least you have a very bizarre and twisted viewpoint. But, I will admit it is the same twisted ideology most conservative's tout. Do you honestly believe that conservatism isn't a political agenda?????? If you do you need to take a better look at it! It is just as much if not more of one than liberalism is. The justices you mentioned above are anything but a credit to the bench! Our forfathers would roll over in their graves if they could get a load of this bunch. They plan on setting this country back 2 hundred years and putting it in line with their dogmatic religious belief's. You or any other American should be terrified at what is going on with this court. It goes against everything our founders and people who fought for our freedom stand for (regardless of what Pat Robertson and Jerry Falwell tell you). But, you appear to not be intelligent enough to see through the political agenda's these right wing nuts are foisting on this country.

[adventurepa]

Just waiting for the new conservative court to overturn Creation Science and Intelligent Design against evolution controversy. It's just a matter of time. Then the people will see how political influence and corporations have stolen the system.

CarlyLaine, you worry that "Liberals allow BIG GOVERNMENT into every aspect of our lives."
Funny, we liberals worry about the same thing with conservatives, big business and this court.
Funny this conservative court has already started with restrictions and awards to big business and you blame the lib's and big government?
Yet that is exactly what a conservative court does.

[carlylaine]

There should never have been a LIBERAL Court. Having a Liberal Court indicates an agenda. The court should not be political and it seems that the liberals don't want a Constitutional objective they want a liberal one.

I believe by allowing the attrition of justices-who swayed to the left-leave quietly, we allowed those who see the constitution as a perfect human document to guide us.

Liberals in the High Court are there to change who we are, to use their authority to purge AMERICA of capitalism and our pursuit of happiness, and to allow BIG GOVERNMENT into every aspect of our lives.

Scalia, Thomas, Alito, and Roberts are exemplary credits to the Bench. Do you understand that they cannot change the law they can only interpreter the law? Liberals believe the law should be changed through severe interpretation and by stating the the Constitution is a LIVING DOCUMENT, which allows it to mature, expand and grow. They certainly want changes, but in deference to them not what the Constitution states through intelligent interpretation.

[ubrew12]

NRO tries to paint a smiley face on Robert's right wing a*ss.

[fredgrad2000]

Of course it's turning right. All you good church going christians can celebrate beating down the little people in favor of the big people. True to form for war mongers and liars.
Posted by Mimi611


Mimi - Can't have a logical discourse with someone who gets their name-calling rhetoric from the likes of MoveOn.org - become educated and post something intelligent please. The court is doing exactly what is should now; letting the law decide rather than using the courts to usurp the legislative majority.

[fredgrad2000]

By posting articles by NRO, CBS loses a lot of credibility. CBS wants to seem unbiased and independent, it should stick to it's own people.
Posted by fairandbal

They post at least as many articles by The New Republic and The Nation. And they place them in the "opinion" section, clearly labeled as such, which should allow someone of even minimal intellect to discern that these are articles with an...OPINION, from editorial publications!!! I'm personally shocked they post articles by NRO or the Weekly Standard since there has never been any question that CBS is a left-leaning organization (leaning so far in the last few years; most are amazed it hasn't fallen over!!)

[guysdigdirt]

the Roberts Court is now dealing with political reality. Their decisions are unpopular. Certainly, George Bush is also facing the music.
Posted by Antillo99
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It is interesting to see who has a spine and who does not when they are faced with having to stand up for their actions.

Bush is standing tall in having done what he thought best.

Clinton, Hillary has changed her tune and turned her back on the troops even thought she admits our Troops will need to be there for another 10 years.

Clinton, Bill lied about his actions, said he did not do it, then lied that he had a differnt meaning for his actions than the rest of the world, and Hillary stood by him for politiacl and power reasons alone.

Do you want a spineless liar or a man that will take responsibility for his actions. Roberts and Bush have the character, spine and abliliy to make the right deciions, popular or not.

[guysdigdirt]

Believe O'Conner was the "swing" in that vote, and hope she's lying awake at night with a guilty conscience for what she allowed to happen.

And to NRO, your subscribers and followers, have YOU ever had an attack of conscience, guilty or otherwise, for ANYthing you've ever done or not done? Do you have a conscience? Or is - we must win, we must be right, we must profit - the only code you follow?

Thank You
BC Kelly
Tallahassee Fla


Posted by BC_Kelly
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YOu seem to be a sore loser who knows your own words and feelings well. "we must win, we must be right, we must profit". Get over the past, move on to the future and get true and correct information before you form opinions.

Oh yeah, O'conner is happy the 2000 elections came off as they did, she knows Afgahni would be a hard language to learn as would have been our new language if Gore had been elected.

[guysdigdirt]

Of course it's turning right. All you good church going christians can celebrate beating down the little people in favor of the big people. True to form for war mongers and liars.
Posted by Mimi611
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Mimi, I know it is hard for you to fathom but it is true, the laws should favor the majority, or the big people as you put it, rahter than the minority, or little peopel.

And your mommy should have taught you that just because you do not get what you want, do not throw a tantrum and call names.

[guysdigdirt]

By posting articles by NRO, CBS loses a lot of credibility. CBS wants to seem unbiased and independent, it should stick to it's own people.
Posted by fairandbal
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CBS is anything but impartial and fair. They have had biased reporting for years and do not hide it.

[sjw1253]

My personal opinion is that the Supreme Court and the rules that regulate the terms, etc. need revised.

What concerns me the most is that the justices do not have anyone overseeing them. They are no better than federal government workers (only worse) - who have no one overseeing them - no accountability for their actions and reasons for their decisions.

The fact is that they are there to uphold constitutional rule. I know that the constitution can be interepreted in many different ways - but the fact is that they should be required to keep their personal feelings, biases, and political ties out of all of their decisions.

The key is that there needs to be objectivity - what is good for one should be good for all. Would this decision be good for every single human living in the U.S.?

[opfor311]

Sam,

It's not too surpising that Alder would be thorough, since he is a professor of law and director of the Center for Business Law & Regulation at Case Western Reserve University School of Law. The style of writing that he has employed is probably a professional hazard, since he probably has to argue case law with his students.

That being said, I know that I try to balance out what the various legal minds on both the left and right have to say. NRO is a pretty good source for a particular point of view, and Time and Newsweek are as well. But you have to take them all with a grain of salt.

After all, the mottos of Military Intellegence are 'Trust, but verify' and 'In God we trust, all others we monitor'.

[fairandbal]

By posting articles by NRO, CBS loses a lot of credibility. CBS wants to seem unbiased and independent, it should stick to it's own people.