The most conservative court? Hardly
by Jeff Jacoby
The Boston Globe
October 10, 2010
WHAT DO YOU CALL a Supreme Court that within the last few terms has ruled that carbon dioxide can be regulated as “air pollution” by the Environmental Protection Agency? That gave captured terrorists and enemy combatants held at Guantanamo Bay the right to petition for release in federal court? That has relied on foreign law when defining provisions of the Constitution?
How would you characterize a Supreme Court that said local governments can seize people’s property by eminent domain and turn it over to private developers in order to generate more taxes? That declared it unconstitutional to impose the death penalty for murders committed by killers younger than 18? And that barred the death penalty as well for the rape of young children — a decision that even Barack Obama suggested was too lenient?
For that matter, what do you call a Supreme Court that according to a new Gallup Poll is viewed positively by 61 percent of Democrats, but only 42 percent of Republicans?
Well, if you’re the dean of the University of California-Irvine’s law school, you call it “the most conservative court since the mid-1930s.” If you’re NPR’s Nina Totenberg, you say it’s a court that is “dominated by a new brand of conservative justice.” If you’re Dahlia Lithwick writing in Slate, you slam it as a court “in which big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door.” If you’re The New York Times, you label it “the Supreme Court that conservatives had long yearned for and that liberals feared.”
The Supreme Court can be something of a Rorschach inkblot: What you see when you look at it may reveal more about you than about any objective reality. To fervent liberals, including some in the press, it may seem evident that any court that includes the likes of Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito — conservatives all — must be a right-wing stronghold.
But that’s a caricature. The Roberts Court has not been relentlessly conservative, let alone the “most conservative court” in three-quarters of a century. How could it be? Its four conservative justice are balanced by four liberals — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan — with Anthony Kennedy in the middle, voting sometimes with one bloc, sometimes with the other. The court’s decisions are as likely to be hailed by conservatives (think of recent cases involving the Second Amendment, race-based student assignments, and partial-birth abortion) as by liberals (Guantanamo detainees, capital punishment, and gay rights).
Earl Warren’s tenure as chief justice was marked by a series of sweeping decisions — in areas ranging from civil rights to criminal procedure to church-state separation — that liberals cheered and conservatives reviled. If the succeeding years had indeed given rise to “the Supreme Court that conservatives had long yearned for,” how many of those landmarks would still be standing? Yet virtually all of them are still good law. Despite the hyperventilating about the court’s supposed tilt to the right, it is generally pretty stable. “Despite complaints by both liberal and conservative critics,” writes Stuart Taylor of the National Journal, “the court has not strayed far from mainstream public opinion over the past 35 years.”
Besides, many cases are not easily located on the ideological spectrum. If the court supports a broad reading of free-speech rights, is it being liberal or conservative? Is it leaning left or right when it defends the right to an abortion at any stage of pregnancy, while allowing lawmakers to ban one particular type of abortion? What about unanimous decisions, like the court’s 2006 ruling that the government may deny funds to universities that ban military recruiters from campus? Or cases in which birds of a feather, such as Scalia and Thomas, or Ginsburg and Sotomayor, come down on opposite sides?
As the Supreme Court’s new term gets underway, it is safe to predict that some of its decisions will infuriate liberals and delight conservatives — and some will do just the opposite. But the justices are not members of Congress. We should not be judging them on how closely their rulings track with our own policy preferences. Their job is to “faithfully and impartially” interpret the Constitution, and to ensure equal justice under law. It is their integrity — not their personal political tastes — that we should care about most.
(Jeff Jacoby is a columnist for The Boston Globe).