The Myth of the “Conservative Supreme Court”
The claim that the Court has a conservative majority is certainly widespread. Googling the phrase “conservative supreme court” turned up over 38 million hits. The more specific phrase, “conservative majority supreme court” yielded 3.75 million. The New York Times has even editorialized that “the aggressiveness of the majority’s conservatism” actually renders the court “radical.”
A careful reading of a study by the Times itself shows the latter claim to be pure bunk. Although the headline affixed to the study suggested that it found the Court to be conservative, that headline was somewhat misleading. The study’s findings were much less definitive. It did conclude that (1) “the recent shift to the right is modest,” (2) “the court’s decisions have hardly been uniformly conservative,” and (3) by contemporary public standards the court is centrist, not conservative.
Careful analysis of the Times study by Professor Jonathan Adler turned up more. Professor Adler demonstrated that the study actually found that the current justices are restrained, not necessarily conservative. They form, in point of fact, the most restrained bench in decades. That means they don’t change the law much one way or another.
Now, you might think that “Restrained = Conservative.” But think again: When the Court leaves existing constitutional jurisprudence untouched, it protects constitutional jurisprudence that is mostly liberal. You see, most existing constitutional jurisprudence is the product of the “progressive” justices who dominated the Court for the greater part of the 20th century. That jurisprudence often disregarded established methods of interpretation, overruled established doctrines, authorized huge expansions of federal power, and re-wrote important parts of the Constitution to serve “progressive” ends. When the Court leaves “progressive” jurisprudence untouched, the results are mostly “progressive” decisions.
Ironically, some of the cases liberals complain most about today—such as the Citizens United ruling on corporate campaign spending—are merely applications of rules formulated in prior years by “progressive” majorities.
Not only has the current Court refused to cashier most of this liberal jurisprudence, but it sometimes has expanded it. A good example is Lawrence v. Texas, a decision authored by Justice Kennedy. Lawrence ruled that anti-sodomy laws violated the Due Process Clause of the Fourteenth Amendment, although such laws had been part of the western tradition for 3000 years. (Needless to say, there is no evidence the Fourteenth Amendment had anything to say on the subject. And, just to be clear, I do not personally favor anti-sodomy laws; that is a different question from constitutionality, however.)
The Times editorial asserting that the present Court is “radical” was triggered by the conclusion of five justices that Obamacare’s individual mandate was not justified by the Commerce or Necessary and Proper Clauses. But that was not even a conservative conclusion, much less a radical one. The five justices called into question no current congressional power. They did not reverse a single liberal holding—not even the rogue 1944 decision that insurance is “commerce.” They merely stated that the Commerce and Necessary and Proper Clauses did not authorize a new congressional power. Even more to the point, the Court ultimately upheld the exercise of that new power by pretending that the mandate was an indirect tax.
Among the Supreme Court’s membership, a plurality (four of nine) are fairly reliable liberals. Only one, Clarence Thomas, is “conservative” in the sense that he consistently interprets the Constitution according to the rules generally applied during the Constitution’s first 150 years. Justice Scalia usually does so as well—but not always: In Gonzales v. Raich, he joined a liberal majority that extended the congressional Commerce Power to window-box plants.
Justice Kennedy frequently sides with the four liberals. Chief Justice Roberts, as the Obamacare case illustrates, usually protects the status quo and the inflated pretensions of Congress. Justice Alito, while more conservative than Roberts, has been mostly unwilling to reverse liberal constitutional jurisprudence.
Admittedly, the present Supreme Court is more restrained than the activist benches of the mid-20th century. Perhaps it would be fair to characterize it as centrist or moderate.
But conservative? Not hardly.