Lots in this article worth highlighting, but at least it now mainstreams what the DFHs have known for at least 3 years since Roberts and Alito took the bench.
In its first five years, the Roberts court issued conservative decisions 58 percent of the time. And in the term ending a year ago, the rate rose to 65 percent, the highest number in any year since at least 1953.
The courts led by Chief Justices Warren E. Burger, from 1969 to 1986, and William H. Rehnquist, from 1986 to 2005, issued conservative decisions at an almost indistinguishable rate - 55 percent of the time.
They're using databases compiled by political scientists who assign decisions to a conservative-liberal rating system according to criteria like whether the court sided with the prosecutor (conservative outcome) or an individual against a corporation (liberal outcome). I think the acceleration is significant too, as Roberts and Alito grow into the jobs and hit their full stride, confident in their impunity.
This really says it all:
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 Alito, Antonin Scalia and, most conservative of all, Clarence Thomas. (The other two were Chief Justices Burger and Rehnquist.) Justice Anthony M. Kennedy, the swing justice on the current court, is in the top 10.
When the "swing" vote at the "center" of the court is actually in the top 10 of consevative justices since they started measuring these things, I think I feel safe saying "Yes Virginia, the Supreme Court is packed with conservative extremists."
At the end of the article they make some revealing comparisons between Roberts' court and Rehnquist (himself no slouch on the conservative front):
In some ways, the Roberts court is more cautious than earlier ones. The Rehnquist court struck down about 120 laws, or about six a year, according to an analysis by Professor Epstein. The Roberts court, which on average hears fewer cases than the Rehnquist court did, has struck down fewer laws - 15 in its first five years, or three a year.
It is the ideological direction of the decisions that has changed. When the Rehnquist court struck down laws, it reached a liberal result more than 70 percent of the time. The Roberts court has tilted strongly in the opposite direction, reaching a conservative result 60 percent of the time.
The Rehnquist court overruled 45 precedents over 19 years. Sixty percent of those decisions reached a conservative result. The Roberts court overruled eight precedents in its first five years, a slightly lower annual rate. All but one reached a conservative result.
So the philosophy of the Roberts court appears to be "less volume, greater impact per decision" which I think comports well to our anecdotal experience with decisions like Ledbetter and Citizens United.
What accounts for the difference is not so much Roberts for Rehnquist, but O'Connor for Alito, making Kennedy (one of the top 10 conservative justices from above) the "swing" vote.
What this does is gives Roberts a hard core cadre of 4 true believers with which to issue "cert" to cases they know they can win and overturn laws or precedents conservatives hate. Rehnquist did not have as strong a bench to work with. He only had 3 reliable votes, and Stevens could certainly have his 4, and occasionally O'Connor or Kennedy issue cert and foil him.
Make no mistake, conservatives have been winning the Supreme Court battle for decades now, as this fantastic graph at the NY Times shows, but in the past the court liberals could win a few. Now those victories are tougher and tougher to come by, and Roberts is able to overturn even a lot of those O'Connor 5th vote Stevens coups from the past decade.
One more bit of DFH gloating:
But only one change - Justice Alito's replacement of Justice O'Connor - really mattered. That move defines the Roberts court. "That's a real switch in terms of ideology and a switch in terms of outlook," said Lee Epstein, who teaches law and political science at Northwestern University and is a leading curator and analyst of empirical data about the Supreme Court.
Though Chief Justice Roberts gets all the attention, Justice Alito may thus be the lasting triumph of the administration of President George W. Bush. He thrust Justice Kennedy to the court's center and has reshaped the future of American law.
Alito should have been filibustered. I say that as someone who hates the filibuster and won't cry to see it go, but while it exists, liberals should avail themselves of it to fight the most important fights, and Alito was one such. The conservative proto-teabaggers who revolted over the Miers nomination won a big big fight by forcing Bush to pick a real movement ideologue. Would that liberals not feel so reluctant to put a stick in Obama's spokes over blank-slate Kagan.