The Roberts Court after Five Terms

According to Adam Liptak, the Supreme Court reporter for The New York Times, in the five years since John Roberts has been chief justice, "the Court not only moved to the right but also became the most conservative one in living memory." Liptak bases his assertion on social science analyses of the Court's cases that label decisions "conservative" or "liberal" according to certain criteria.  For example, in the area of criminal justice a decision in favor of the government is considered conservative while one in favor of the defendant is considered liberal.  Similar classifications are applied in other areas, and while one may quibble with some of the schemes, the do provide a rough overall portrait.

  • In its first five years the Roberts Court issued conservative decisions 58 percent of the time, and it has been rising each year.
  • Four of the six most conservative justices of the 44 who have sat on the Court since 1937 are serving now—Chief Justice Roberts, and Justices Antonin Scalia, Samuel Alito, and most conservative of all, Clarence Thomas.  The swing justice, Anthony Kennedy, is in the top ten.
  • The Roberts Court is finding laws unconstitutional and reversing precedent, two signs of judicial activism, no more often than previous courts.  But where the Warren Court's activism tended toward liberal results, that of the Roberts Court is consistently conservative. Justice Stevens, who has just retired, asserts that ever since 1975, every justice, including himself, was more conservative than the person replaced, with the possible exceptions of Justices Sotomayor and Ginsburg. When asked if the replacement of Chief Justice Rehnquist by John Roberts moved the Court to the right, he said "Oh, yes."
Yet to most Americans, the Court does not seem too conservative at all. A recent survey asked whether the Court was too conservative, too liberal, or about right, and 29 percent of the respondents said too liberal, 22 percent too conservative, and 47 percent about right.  To many scholars, this reflects fairly accurately the current line-up in American politics, which has certainly grown more conservative since the liberal heyday of Lyndon Johnson. Moreover, some of the Court's high profile decisions seem to reflect the public view. The Court interpreted the Second Amendment to mean that Americans had the right to have a registered handgun, and 81 percent of the people polled agreed. Similarly, 73 percent believe there should be a ban on late-term, or so-called partial-birth abortions.

Yet in other areas the Court seems out of step with the public. Where the Court ruled that the death penalty is an unconstitutional punishment for the rape of a child, two out of three people disagreed. Similarly, when the Court declared that minors could not be sentenced to life imprisonment without parole, 61 percent disagreed. Three out of five people oppose the Court's decision eliminating restrictions on corporate donations to political races, and a similar number believe that, contrary to the Court, suspects believed involved in terrorism should not have the protection of constitutional rights.

Some commentators believe there is trouble brewing in the fact that for the first time in several decades, a conservative-minded Court has to deal with a liberal president and a Congress that is far more liberal than its Republican-dominated predecessors. One of the first acts of the Obama administration was to overrule a Court decision regarding statutory interpretation of a discrimination law that was clearly in favor of business. The president has criticized the Court for its decision in Citizens United (see below), and congressional leaders are making noises about several court decisions that they think are wrong and should be reversed. How this conflict will turn out is anyone's guess.

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