In an article in the LA Times today, the author claims that the current Supreme Court is the most conservative court in decades:
As the Supreme Court begins its new term Monday, its sixth with John G. Roberts Jr. as chief justice, the reality is that this is the most conservative court since the mid-1930s. Since Richard Nixon ran for president in 1968, conservatives have sought to change constitutional law, and they have succeeded in virtually every area.
During the first years of the Roberts court, it has consistently ruled in favor of corporate power, such as in holding that corporations have the 1st Amendment right to spend unlimited amounts in independent political campaigns. For the first time in American history, the high court has struck down laws regulating firearms as violations of the 2nd Amendment and held that the Constitution protects a right of individuals to possess guns. It has dramatically cut back on the rights of criminal defendants, especially as to the exclusion of evidence gained through illegal searches and seizures under the 4th Amendment and the protections of the 5th Amendment’s privilege against self-incrimination. It has greatly limited the ability of the government to formulate remedies for the segregation of public schools. It has significantly expanded the power of the government to regulate abortions.
There is some insight and much exaggeration in this claim.
The first point is to clarify the terms of debate. There are in fact three very different orientations to constitutional law that should not be collapsed into two. The liberal position is essentially suspicious of corporate and business power, and supportive of individual rights. It is collectivist on such matters as employment law and libertarian on free speech for dissenters. It has, like the conservative view, a case-by-case view on judicial restraint versus judicial activism. No deep principle. The willingness to let courts decide matters depends on the extent to which there is agreement with what they say.
On the other hand, the conservative side tends to be more market oriented as a political matter, but still somewhat suspicious of judicial enforcement of these norms. Hence it will side with the liberals (or progressives) in condemning decisions like Lochner v. New York insofar as they limit the power of states to impose either minimum wage or maximum hour laws.
There is, however, a third way, which is more classical liberal and more self-consciously imitative of Madison and his concern with factions that take over the political process. It in general is deeply suspicious of administrative agencies, given its support of separation of powers, and thinks that federalism, with limited federal powers is also needed. This position also tends to be sympathetic with all claims for liberty, regardless of whether they are treated as personal or economic, again with variations on abortion and gay marriage. The former is always dicey because if the fetus is a person, then the Millian harm principle could apply. The latter because of the view that the moral case for gay marriage, however strong, does not line up with the historical view of constitutional law that gives extensive powers to the state to regulate “morals” issues such as marriage and sexuality.
Clearly, this is a crowded a confused landscape. So now to the particulars.
On corporate power, the statement is grotesque. Citizens United did not hold that corporations “have the 1st Amendment right to spend unlimited amounts in independent political campaigns.” It only held that the constitution did not prevent them from funding electioneering communications from general funds within thirty days of an election or primary. Otherwise the rules on corporate giving remain immensely complicated and largely in tact. The decision moreover in Citizens United is correct. The bottom line is that corporations are not keen on general election campaigns (even if their shareholders are). They prefer focused giving on issues, which is as it should be. Only fringe corporations with no consumer base may take advantage of this privilege, which otherwise will have little impact.
The Second Amendment cases on guns is much more complicated again, and as a textualist I think that the Court decisions in both Heller and McDonald was wrong. As a classical liberal I also think that the case for most gun regulation is pretty weak, but not necessarily fatal. There is a clear sense in which originalism does not speak with a single voice, as the quoted passage tends to say.
On school integration, I don’t think that it is accurate to say the court “has greatly limited the ability of the government to formulate remedies for the segregation of public schools.” Segregation in the old sense is not the issue. It is busing and integration. On these questions, I think that government should have some degree to manage intelligently its student population, and therefore oppose what was done. I don’t even know if most libertarians agree.
There is a larger theme here. One should first state the propositions accurately, and then try to make some independent judgment as to how the constitution plays out. If it always agrees with your moral priors, you are doing something wrong.
More from Epstein & Yoo: