The Most Conservative Court In Modern American History?

 

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.

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More from Epstein & Yoo:

Do Corporations Have the Same Rights as Citizens?

Is There a Judicial Vacancy Crisis?

There are 6 comments.

  1. John Yoo Contributor

    Richard is right on the fundamentals — this is all depends on what “conservative” means. And here, the LA Times quote tells more about what newspapers think is “conservative” than about the Supreme Court. The LA Times thinks that conservatives must a) like corporations; b) guns; and c) the police; and dislikes busing and abortion. These views may or may not align with the current views of the Republican party, but I think it hasn’t much to do with conservatism either as a political ideology or as an approach to the law. A Burkean conservative might prefer that the law only change gradually, in which case the exercise of judicial power to overturn tradition would be wrong. A Borkean conservative might prefer that judicial review almost never be used. An Epsteinian, by which I mean a libertarian conservative, would prefer that the courts use their authority to expand liberty and defend narrow limits on government power.

    With the exception of national security, I’m with Richard on enforcing a strict separation of powers and more balance between the federal and state governments because those mechanisms protect individual liberty. If that is the case, then this Court is anything but conservative. It has allowed monstrosities like the independent counsel law and the multitude of administrative agencies. It has said that the federal government can regulate the individual production and sale of marijuana. It only half-heartedly enforces protections for private property. It may provide greater protections for certain rights, such as ever more exotic forms of “speech” or “privacy,” but it has reduced economic individual rights to a hollow core. If one is a libertarian on criminal rights too, the Court has been disappointing — it has narrowed rights in the Fourth and Fifth Amendment context (though I tend to think that the Warren Court went too far in creating impractical and confusing rules for police, and that the terrorism threat should justify some latitude to law enforcement).

    • #1
    • October 5, 2010, at 4:33 AM PDT
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  2. John Yoo Contributor

    But even if you thought that the court should be judged “conservative” or “liberal” based on political outcomes, it is hard to say that this is a conservative court. The Court recently has blocked some Bush anti-terrorism policies, it has narrowed the death penalty and said that juvenile criminals cannot be sentenced to life without parole. If this Court in the next year or two: a) strikes down Arizona’s immigration laws for violating federal control of the field, b) finds gay marriage to be required by the Constitution, and c) upholds Obamacare — and I think the odds of each are at least 50-50 — then how could anyone accuse this Court of being conservative? The truth is that there are 4 “liberals,” and 4 “conservatives,” and the Court’s course is unfortunately dictated by Justice Kennedy, who seems to me to lack a consistent and coherent judicial or political philosophy.

    • #2
    • October 5, 2010, at 4:35 AM PDT
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  3. Midget Faded Rattlesnake Contributor
    John Yoo: Richard is right on the fundamentals — this is all depends on what “conservative” means. And here, the LA Times quote tells more about what newspapers think is “conservative” than about the Supreme Court.

    That was exactly the impression I got from reading the LA Times quote — that this columnist sure has a funny idea of what “conservative” must mean, like he doesn’t get around to talking to many actual conservatives.

    • #3
    • October 5, 2010, at 5:25 AM PDT
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  4. Richard Epstein Contributor
    Richard Epstein Post author

    I have only one observation to make about John’s nice overview of the Court in the last 75 years since the crystallization of the New Deal.

    I do not pretend to be a narrow originalist who thinks that texts solve all problems. But text is the place to begin, and with it the inferences that can be drawn from constitutional structure in light of the Lockean and Madisoian origins of the Constitution. But what is so sad is that the politics comes first and the methodology comes second. The gun case was notable for the close attention to text and sources, which is why the Scalia opinion struck me as wrong. You cannot excise what is written and add something that need not be implied to get matters right.

    But unfortunately, the politics comes first and the law second. So on gay marriage as a libertarian on personal matters, I wish that everyone would give this a rest. But as a constitutional matter, on those issues, the history runs the other way. The acid test of good interpretation is whether people will defend constitutional results that disagree with their overall politics. That does not happen very often. Instead of constitutional law, we have a procession of decisions on all sides that specialize in happy endings.

    • #4
    • October 5, 2010, at 5:26 AM PDT
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  5. G.A. Dean Inactive

    I believe that one way of summarizing what we are saying in this thread is that the things a political conservative wants in a court are not necessarily the things he wants in a legislature or a president.

    • #5
    • October 5, 2010, at 5:38 AM PDT
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  6. kylez Member

    I like that line “since Richard Nixon ran for president in 1968 conservatives have sought to change constitutional law.” No, that is exactly the point. Liberals are the ones who seek to change constitutional law, and have succeeded in many ways since FDR. Conservatives are the one who want constitutional law to go back to where it was when it was based on the Constitution. Also, I wonder if the author realizes that their beloved Roe v. Wade was written by a Nixon appointee.

    • #6
    • October 6, 2010, at 5:00 AM PDT
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