07.28.2010 0

U.S. Supreme Court’s Conservatism is Greatly Overstated in Front Page NYT Report

By Kevin Mooney — Thanks in no small part to President George W. Bush’s successful nominations, the U.S. Supreme Court is perhaps the most conservative in history, a front page report in The New York Times declares. In reality, this claim is greatly overstated despite recent rulings. The key swing vote is highly unpredictable and quite left-leaning. Moreover, the more conservative members could retire in short order opening the way for another Obama pick.

Although the U.S. Supreme Court under Chief Justice John Roberts has issued recent rulings that are reflective of a conservative jurisprudence, a front page report running in Sunday’s edition of The New York Times greatly overstates the rightward shift. The article is built around a database created by the National Science Foundation (NSF) that gauges the ideological complexion of court rulings and the leanings of individual members.

“In the database, votes favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights are, for instance, said to be liberal,” the report explains. “Decisions striking down economic regulations and favoring prosecutors, employers and the government are said to be conservative.”

Over next few months, the high court could find itself positioned to rule against the Obama Administration on major public policy fronts. This might explain why the president himself sought to delegitimize the more conservative members of the bench during his January State of the Union Address.

With eye toward upcoming court cases that could jeopardize liberal preferences, Adam Liptak has crafted a well-written, engaging report that compares and contrasts the record of recently appointed justices with their immediate predecessors. It also examines some of the more monumental cases within their larger historical context. However, some key points do go overlooked.

While the article suggests the court could be entering a new era of stability in light of new appointees, some of the more conservative members who are in their 70s could step down in short order. If Obama selects just one replacement that would dramatically shift the court’s makeup.

Moreover, it is misleading to conflate decisions that overrule precedent with some form of activism. Contrary to what is often taught in law schools, the U.S. Constitution and U.S. constitutional law are often two very different items. Recent court rulings that overturn earlier decisions divorced from the text’s original meaning are more about restoration and less about activism. Associate Justice Clarence Thomas issued a concurring opinion in the McDonald V. Chicago case that is highly instructive here. The Times, like many media outlets, has a distorted view of what activism really means.

“The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts,” the report says. “But the ideological direction of the court’s activism has undergone a marked change toward conservative results.”

Unfortunately, this assessment omits any consideration of judicial reasoning. As the Times acknowledges, the Roberts Court has actually been quite restrained in its approach toward precedent by historical standard. Although liberal sensibilities may be offended by court rulings that reverse precedent, the majority of justices have argued on the basis of law not ideology.

But the article does call attention to the single most important change on the court concerning the replacement President Bush selected for Sandra Day O’Connor.

“Though Chief Justice Roberts gets all the attention, Justice [Samuel] Alito may thus be the lasting triumph of the administration of President George W. Bush,” the reporter correctly points out. “He thrust Justice Kennedy to the court’s center and has reshaped the future of American law.”

“It is easy to forget that Justice Alito was Mr. Bush’s second choice,” the report continues. “Had his first nominee, the apparently less conservative Harriet E. Miers, not withdrawn after a rebellion from Mr. Bush’s conservative base, the nature of the Roberts court might have been entirely different. By the end of her almost quarter-century on the court, Justice O’Connor was without question the justice who controlled the result in ideologically divided cases.”

Since joining the court, Alito has voted decisively in cases involving race preferences and campaign finance reform that stand in stark contrast to Justice O’Connor’s earlier rulings. There’s no question that Alito will remain force on the court for years to come. However, Liptak places far too much weight and faith in the idea of Justice Anthony Kennedy as a reliable vote on behalf of constitutionalism. He is best described as a libertarian legislator who has racked up a multitude of activist rulings.

Kennedy has staked key votes on abortion (Planned Parenthood v. Casey), gay rights (Romer v. Evans and Lawrence v. Texas), the Establishment Clause (Lee v. Weisman), capital punishment (Roper v. Simmons, Kennedy v. Louisiana) and national security (Boumediene v. Bush, Hamdan) that should give strict constructionists good reason for pause. He also joined with Justice O’Connor in the past citing foreign law as the basis for certain rulings.

Anytime a report makes smart use of data and carefully constructed definitions it should be taken seriously. This article certainly makes the cut. But readers could just as easily conclude that the Roberts Court is actually more center-left than it is right. The public after all is much more right-leaning than the news media.

Kevin Mooney is a contributing editor to NetRightDaily.com and the Executive Editor of TimesCheck.com.

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