NYT: Roberts court most conservative in decades

by: Daniel De Groot

Sun Jul 25, 2010 at 12:02

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."

Daniel De Groot :: NYT: Roberts court most conservative in decades
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.

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if we had an actual progressive president he'd try packing the court (4.00 / 1)
but, well, you know

His Court choices are the biggest let-down of all... (4.00 / 1)

Nationalism is not the same thing as terrorism, and an adversary is not the same thing as an enemy.

[ Parent ]
Alito gives it all up to the Chamber of Commerce.. (4.00 / 3)
He supports their position more than any other justice. Which explains his unprofessional response when Obama called the Court out on the Citizens United case. The 5 conservatives as a whole rule for the Chamber in about 70% of the cases.
When I did research on this 2 years ago, the Chamber already had more wins under the Roberts Court than it had in all of is past history.  

The very fact that Alito got through anyway after his horrible performance in his confirmation hearing, was only because a few good Dems who now regret their decision -trusted him.
Of course they all turned around and gave their majority up to the Republicans because they trusted them too-- so what the hell.

Sotomayor by the way, as the link shows, voted against the Chamber in 5 out of 7 decisions. So far, so good,

But Kagan, the most important and worst Justice nomination ever at a critical time in our history, I really fear, will be and was appointed solely because Obama knew her to be not only pro-Executive branch  - but pro-Wall Street as well.


Nationalism is not the same thing as terrorism, and an adversary is not the same thing as an enemy.

Obama's picks (4.00 / 2)
My take on them is they are both disappointing for different reasons.  I have no particular criticism of Sotomayor, except that with a huge Senate majority, Obama vastly underreached as far as who he could have picked.

Sotomayor will be well enough, but there were better liberal judges that could have been elevated.

Kagan is such a blank slate I share your fears about what she'll do on economic and executive power issues.  If Obama had a Republican senate to deal with, a stealth nominee would make sense from a political expediency perspective.  With big Senate majorities, why the need to sneak someone passed unless the intent is to fool the left?

Be glad to be wrong and Kagan is fine, but not happy to have to gamble about it.

[ Parent ]
Do you really think Bush was played here? ... (0.00 / 0)
The conservative proto-teabaggers who revolted over the Miers nomination won a big big fight by forcing Bush to pick a real movement ideologue.

I don't.  I always thought he was playing a game with the base of his party.  If he was able to have Miers installed .. great .. but it was no loss for him .. because he could pin it on the base .. and when the base revolted .. he could say .. see .. I threw you a bone .. so really .. it was a win-win

Where are all the progressive Judges? (4.00 / 1)
Why don't we have more progressive judges on the bench?
Why do we cater to the Conservatives all the time? What is so wrong about being progressive or liberal?

You ask a great (0.00 / 0)
question: What is so wrong about being a progressive or liberal and on the Supreme Court.

That is a question that I would love to ask Pres. Clinton and President Obama.

Ginsburg and Breyer are surely better than most of the court, but the reality is that they are very, very, very moderate justices. Moderate in politics, moderate in personality. They are rather solicitous toward corporate power. Breyer in particular is smart as hell, but they are both very restrained and 40 years ago would have been center right on the court. That's Clinton's nominees.

Obama's are better in that at least they are young, so it is clear the Obama team understands longevity in a way that Clinton did not (or more fairly, chose to ignore in favor of getting nominees Hatch, the ABA, and the Chamber were fine with). But young and moderate is no great thing.

So the answer to the other question, why don't we get more progressives on the bench has two parts: Democrats do not nominate real progressives and conservatives dominate the framing of court politics.

They understand how to use judicial appointments to mobilize the troops and it appears to me that Dems just want the base to go away or stay mute on court politics. Which they mostly do.

We need different individuals and strategies for controlling courts all the way up the line. Neas and Aron and gang are not getting the job done.

Did they get you to trade your heroes for ghosts? Hot ashes for trees? Hot air for a cool breeze? And cold comfort for change?

[ Parent ]

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