Over the weekend, the NYT printed an article calling the Supreme Court under C.J. Roberts the “most conservative in decades.” “The court not only moved to the right,” the article said, “but also became the most conservative one in living memory, based on an analysis of four sets of political science data.”
We admit to reading the article with a fair amount of skepticism. Whenever political science folks or sociologists or others of their ilk start talking about the Court being “conservative” or “liberal,” we get uncomfortable. The words have very different meanings for politicos than they do for jurists. A judicial conservative is not necessarily supportive of right-wing politics. A jurist who is politically conservative may well be fairly liberal in his jurisprudence, especially if he’s using his opinions to further a political agenda.
The article did nothing to assuage our discomfort. As we feared, it conflated the concepts of political and judicial conservatism. The article really focused on whether rulings were more or less likely to be favored by conservative political platforms.
To be fair, the headline really is misleading. The article itself says at least twice that “the recent shift to the right is modest.” And it does point out not only that “the court’s decisions have hardly been uniformly conservative,” but also that “the court’s decisions are often closely aligned with or more liberal than public opinion.”
But the basis of any analysis is its presumptions. And the presumptions applied here are beyond simplistic. “In the database, votes favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights are, for instance, said to be liberal. Decisions striking down economic regulations and favoring prosecutors, employers and the government are said to be conservative.” Forget being beyond simplistic, it’s downright misleading.
Notice that the focus is on who prevailed in the case, not why the Court sided with them. Just because a criminal defendant won his appeal, for example, that does not mean the justices were being liberal when they sided with him. The Melendez-Diaz case, after all, pretty clearly restrains the prosecution and favors defendants, by requiring chemists to testify at trial as to their analysis of alleged drugs. Who wrote the majority opinion? Scalia. Hardly a liberal. His reasoning? Very conservative: this is little more than an application of existing 6th Amendment law under Crawford. Scalia is one of the most conservative justices, and yet he’s also the Court’s biggest protector of 6th Amendment rights.
Similarly, just because a civil-rights claim prevails, that has nothing to do with whether the decision itself is particularly liberal. And if the civil-rights claimant loses, that doesn’t mean the decision was conservative.
The analysis is flawed from the get-go, because it focuses on the wrong thing entirely. The focus should not be on who won, but why they won.
We also made a face when we read this bit: “The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts. But the ideological direction of the court’s activism has undergone a marked change toward conservative results.”
No, no and no.
Judicial activism is not measured by finding laws unconstitutional. Judicial activism is creating new law where none existed, or legislating from the bench — it is another way of saying the court is exceeding its authority. When the law is different from how a judge thinks it ought to be, an activist judge changes the law. Merely applying existing constitutional law, however, and finding that the legislature has passed a statute that happens to be unconstitutional — that is precisely what the courts are supposed to do in the first place. It is the opposite of judicial activism.
Reversing precedent isn’t so much a measure of activism, either. Some precedents ought to be reversed for perfectly good reasons, such as a change in societal circumstances that necessitated the precedent in the first place. There is nothing activist about saying “applying the Constitution to fact set A resulted in rule X, but now we have fact set B and rule X doesn’t follow any more.” What is activist is deciding not to reverse a no-longer-applicable precedent, in order to advance some policy interest. (Grutter, anyone?)
Recently, there’s been an Orwellian movement on the left to redefine the phrase “judicial activism.” We purse our lips with disapproval every time the NY Times and others mis-use the phrase to mean “decisions that we don’t agree with politically.” Unfortunately, we’re seeing that more and more. But repetition doesn’t make it right.
The article draws a lot of baseless conclusions that we found perplexing. They read more like a shopping list of liberal paranoia than anything else. (Wow, that’s the worst simile we’ve written in ages. We hereby acknowledge its awfulness, but we don’t have time to edit these things. Every post here is a first draft. Which explains a lot…)
Take the fifth paragraph, for example:
If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections, and to elaborate further on the scope of the Second Amendment’s right to bear arms. Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes
That’s nothing more than saying the court is more likely to do things that liberals think conservatives want done. And there is no basis for saying it.
“Greater role for religion in public life” — really? So judicial conservatives are somehow more likely to disregard the Establishment Clause and all the court’s jurisprudence thus far? Kennedy’s suddenly going to say he was wrong in Lee v. Weisman? Hardly.
“More participation by unions and corporations in elections” — than what? They’re already allowed to contribute to campaigns, what, they’re going to be allowed to vote or run for office, too?
Further elaboration “on the scope of the Second Amendment’s right to bear arms” is sort of going to be necessary, no matter who’s sitting on the Court. In the wake of Heller and McDonald, cities are already formulating ordinances designed to restrict gun ownership despite those rulings, and there will have to be some more cases to flesh out precisely what is and is not permissible government regulation here. The Roberts court is no more likely to “elaborate further” than if you replaced them all and let Obama fill their seats.
“Abortion rights are likely to be curtailed” — likely? Curtailed? How? Since when? This concern is a shibboleth of the political left, but it is an irrational fear. Legalized abortion has been the law of the land for nearly 40 years, now. The Court has had ample opportunity to reverse Roe v. Wade, and even the most conservative justices have not gone that route. If the Roberts court was so inclined, one would have expected some indication in the Carhart case a couple of years ago. But instead, they stuck with the Roe and Casey rule. There is zero indication that the Court is going to change its mind all of a sudden. And the longer the law remains the law (and as society becomes more and more cool with it in general), the likelihood of a conservative court flying in the face of stare decisis becomes more and more remote.
“Affirmative action” is likely to be curtailed? — Not for another 18 years, per the 2003 decision in Grutter.
“Protections for people accused of crimes” are likely to be curtailed? — Is nobody paying attention? We sure haven’t been seeing it. What we’re seeing is a trend towards greater certainty being required for whether one has waived his Fifth Amendment rights. Greater protection of Sixth Amendment rights. More restrictions on capital punishment. Nowhere are we seeing a trend towards fewer protections for the accused.
The Times is just making this stuff up. It sounds right to them, so it must be true? That’s not how journalism is supposed to work. But we guarantee this piece is going to be quoted ad nauseam as gospel in future arguments about the makeup of the Court. And that’s too bad.
So, who wants to do a proper study? Any takers?