Is the Contemporary Supreme Court Really That Conservative?

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5 Responses

  1. A.J. Sutter says:

    The SCDB codebook variable DIR includes five sub-variables (plus one more for which DIR takes on an indeterminate value). Can you present how the cases break down according to the subvariables, rather than in an aggregate, as you have done above?

    Also, to say that you followed a “widely-used convention” doesn’t eliminate the possibility that this convention isn’t applied in a uniform manner, and that some of your results might still be an artifact of your particular choices. E.g., the SCDB guideline is that “pro-female in abortion [decision]” merits liberal. You point out that Planned Parenthood v. Casey upheld a woman’s right to an abortion, even though it allowed states to impose more restrictions; this sounds like an argument that the decision is “pro-female”. (Indeed, it sounds like an argument that any decision that limits a “liberal” precedent, but stops short of overturning it, merits a “liberal” score.) Arguably, though, the opening of the door to more restrictions merits a conservative score. How did you in fact score that case?

  2. William Corteal says:

    I agree with the above response. The initial problem is what does “Conservative” mean in these cases? Conservative could refer to a political position, which changes radically over time (Goldwater arch-conservatives would be deemed moderates on the court today, as an example).

    Conservative in judicial demeanor? Conservatism in this case refers to the traditional definition of not wanting to deviate from the status quo.

    The SCDB meets neither of these definitions, but goes to what I believe is an Originalistic interpretation of judicial philosophy as it relates to key Constitutional periods, primarily during the writing and ratification of the Constitution and Bill of Rights, or during the Civil War amendments.

    This then suggests that the pro-gun rights rulings against government regulation (DC v. Heller and McDonald v Chicago)should be classified as “liberal”. This would be because the ruling was against goverment regulation and for personal rights.

    The classification would not meet the common understanding of what it means to be conservative or liberal in relating to either political viewpoint or judicial termperment. I believe that you are trying to state that the current court isn’t that Conservative, but I believe that the data fails the semantical implication of your article.

  3. Hans says:

    Many of the decisions by the Roberts Court that liberal journalists claim ignored past precedent actually followed them faithfully.

    Take the attack on one Supreme Court decision, the Seattle School case (Parents Involved in Community Schools v. Seattle School District No. 1), which struck down racial quotas in the schools. Public opinion polling shows the public agreed with that decision.

    Some liberal journalists peculiarly claim that that decision should have upheld rather than struck down the challenged use of race based on one past Supreme Court decision (Grutter v. Bollinger (2003)), even though most of the Supreme Court’s decisions strike down the use of race.

    But even the one case they cite, Grutter, provides no basis for a different ruling in the Seattle case. The Grutter decision upholding affirmative action in the University of Michigan’s law school expressly FORECLOSED the Seattle School District’s race-based plan, since it said (a) you can’t use race in a mechanical way (which is why the affirmative action in Grutter v. Bollinger’s companion case, Gratz v. Bollinger, was struck down — it assigned a mechanical weight to race and other factors for admission to the University of Michigan undergraduate college), and (b) expressly said that “racial balancing” is constitutionally forbidden (Seattle, unlike the University of Michigan, expressly and openly race-balanced, fitting school racial percentages to demography). Both of these criteria cut AGAINST the Seattle school policy invalidated in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). The Seattle Schools used race in a mechanical way like the invalid policy in Gratz — not an amorphous way as in Grutter. And they obviously engaged in “racial balancing,” which the Grutter decision expressly said was forbidden. (This is putting aside the fact that Grutter allowed race to be used at all based on “academic freedom,” a higher-education notion that probably does not apply to K-12 schools like Seattle – meaning they arguable could not use race even under circumstances otherwise permitted by Grutter).

    Liberal journalists apparently think the Roberts court should have ignored the many prior Supreme Court decisions limiting the use of race (Croson, Bakke, Gratz, Wygant, Adarand, etc.) while expanding on the few decisions upholding the use of race (like Grutter). But it’s not clear why. Stare decisis doesn’t apply just to liberal decisions, nor does it allow many Supreme Court decisions to be ignored to expand the reach of the few – especially when doing so contradicts language found even in those few that are purportedly being followed.

  4. Hans says:

    Slate’s Dahlia Lithwick falsely claimed on September 26, 2009 that in the Supreme Court, “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.”

    That false claim is utterly inconsistent with reality. Over the last dozen years, the death penalty has been dramatically cut back in cases like Roper v. Simmons (2005), as the Supreme Court has invalidated the death penalty when imposed on the “retarded” (even the mildly retarded) or juveniles (even 16 to 18 year-olds), or when imposed by judges rather than juries (as state laws long provided).

    The Supreme Court overturned thousands of sentences given to criminal defendants in cases like U.S. v. Booker (2005) and Blakely v. Washington, regardless of defendants’ guilt, based merely on the fact that judges, rather than juries, had made findings related to those sentences. The supposedly “right-wing” justices Roberts, Scalia, and Thomas joined in these decisions.

    Environmentalists won many cases, including one of the most economically-significant decisions ever — Massachusetts v. EPA (2007) — which potentially opened the door to EPA regulation of virtually every human activity, on the grounds that virtually all activity (from industrial production to farming to cars) emits carbon dioxide. That decision also created a special rule of standing to allow state attorneys general to bring lawsuits that would otherwise be thrown out as meritless for lack of standing.

    The Supreme Court recently allowed businesses to be sued even for products the FDA deems to be safe and effective, in Wyeth v. Levine (2009), in a ruling that Ted Frank at Point of Law called the most anti-business decision in 43 years.

    The Supreme Court has usually broadened businesses’ liability for discrimination against female and elderly workers. It continuously expanded the definition of sexual harassment, overturning earlier limits on vicarious liability (in Faragher v. Boca Raton (1998)), allowing institutions to be sued based on the acts of non-employees (in Davis v. Monroe County (1999)), and rejecting longstanding lower-court limits on lawsuits where there is no economic or psychological harm (in Harris v. Forklift Systems (1993)). It also allowed businesses to be sued for discrimination against elderly workers even absent any showing of discriminatory intent or differential treatment (in Smith v. Jackson (2005)). All of these decisions overturned lower court rulings against plaintiffs. The Supreme Court often rules against business in discrimination cases.

    In short, Dahlia Lithwick’s perception of the Supreme Court bears no relation to reality.

  5. Steven says:

    Supposed ideological subjectivity, when involved in the perceptions of the Supreme Court’s order initiate a variable factor within the collective consensus of the people. While on a case-to case (moderate) balancing understanding in follow of the Supreme Court’s ruling, shows a spectrum of liberal/conservative waivers, case in point and should therefore be the priority for the subjectivity of a person within the rule of the Supreme Court. Lean to the left but hold down the right. Case to case. One day at a time.