Scare Mongering About SCOTUS

 

The Sunday NYT had a front page — front page, mind you — story concluding that the Roberts Court is “the most conservative in decades,” complete with a creepy pencil drawing of Roberts.

Once you get six paragraphs in, you discover that, in fact, “the recent shift to the right is modest,” and that the Roberts court has not struck down laws nor overturned precedent more than earlier courts did. But the author (Adam Liptak) uses “widely accepted political science data” to conclude that the Court has lurched to the right. Briefly stated — and the article itself is a typical bit of NYT windbaggery — there are Poli Sci types who “rate” judicial decisions along an ideological spectrum, so that, for instance, decisions favoring criminal defendants are deemed “liberal.”

What nonsense! (Professors Yoo and Epstein: help!) Such a ranking only makes sense if you view the world through interest-group politics, so that “conservative” means hostile to the accused and friendly to corporations. In fact, Justices Scalia, Thomas, et al. have often supported the rights of criminal defendants — not because they happened to wake up on the liberal side of the bed that morning but because in the particular case, that decision was the most faithful to the Constitution (or whatever statute was at issue).

And even if you accept this pseudo science, all you get is that the Roberts Court, in its first five years, issued “conservative” opinions 58% of the time (with an uptick in the last term), whereas the Burger and Rehnquist courts averaged 55%.

And based on that 3% difference, the NYT warns: “If the Roberts court continues on the course suggested by its first five years, . . .abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes.”

Don’t get me wrong, I’ll be delighted if the Court strikes down ObamaCare, and overturns the travesty that is Roe v. Wade. But we’re not there yet, and this article strikes me as a particularly egregious example of the NYT trying to shoehorn facts into its pre-determined conclusion.

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  1. Profile Photo Inactive
    @tabularasa

    There are four liberals (Stevens, Sotamayor, Breyer, and Ginsberg) and four conservatives (Roberts, Alito, Scalia, and Thomas). On close cases, Kennedy decides which side wins. So, if the Roberts court is “more conservative,” the only real change is where Kennedy is coming down on issues. Kagan will soon replace Stevens and the same ideological line-up will continue. Really a dumb article.

    An inside source has disclosed to me that the NY Times writes articles filled with “wild and wacky left-wing nonsense.” I also asked my three dogs and one cat. They agree.

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    @JohnYoo

    From my quick glance at the story, there are several reasons to question it, even if the statistics bear out as the author says. But it is all to representative of the one-dimensional way that the Times and other papers view the Court.

    1. the difference in “conservative” outcomes is only 3 percentage points from the Rehnquist Court — not significant.

    2. The importance of the constitutional issues are not weighted. A “conservative” decision on two bankruptcy cases (whatever that might be) seems to count twice as much as one “liberal” decision on abortion.

    3. What is conservative and liberal in constitutional law does not align with the conventional political meanings. Are the Second Amendment cases considered liberal or conservative? They expanded individual rights over government power (liberal?), but relied on the original understanding of the Amendment (conservative?). For the Justices, the way to interpret the Constitution is far more important than the outcome of who wins or loses.

    4. There is a difference with Alito replacing O’Connor, but I think this will make a difference for conservatives in three places only: religion, race, and free speech. He may be more “liberal” in others, such as states’ rights.

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    @RichardEpstein

    I agree with all of your specific points, Adam, in response to Adam Liptak’s argument. But at the same time, I think that the changes are more significant that the three percentage differences in votes that he perceives.

    Here is the way the argument goes. The single most dominant feature of the Supreme Court from 1954 to 2010 is that Republic presidents appointed justices who became staunch liberals. Four of these did so more or less from the outset, and they had together an enormous influence on the direction of the court. Earl Warren for 15 years; William Brennan for 34 years; John Paul Stevens for 36 years; David Souter for 18 years.That is 103 Justice years over a 55 year period. Add to that Harry Blackmun at 23 years and the number goes plausibly to 126. Toward the end of her career Justice O’Connor moved leftward as did Justice Rehnquist. Throw in perhaps another 10 years between them, and the total goes to 136. I can not think of a single Democratic nominee who moved consistently to the right. So we have about 136 justice years over a 55 year period… [1/2]

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    @RichardEpstein
    …which is about 2.5 republican votes that become democratic votes. It was an enormous swing.Now look again. There are zero crossover votes on the current nine. The only arguable exception is Justice Kennedy who has been on the left on several issues, including cruel and unusual punishment and gay rights. But otherwise, the lines are drawn now as they have never been because the alignments are stark in way that they have never been. Given who these people are, I don’t expect to see any drift on either side. At this point, if we look at the chances, Alito is more conservative by far than O’Connor was at the end of her career. The same is true to a lesser extent tin the switch from Rehnquist to Roberts. Sotomayor is to the left of Souter, and Kagan will be about where Stevens was at the end of his career, which was further to the left than when he began. So the split has gotten wider. And that will be the norm going forward, because with the new emphasis on the Court we will not have a rerun of the Republican slippage. [2/2]
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    @AdamFreedman

    Richard – great points,if only that Times had run that analysis! So shouldn’t the headline be: “Court is increasingly polarized” rather than “Court is increasingly conservative?” If, for example, Kennedy or Scalia should retire soon, and Obama were to name the successor, presumably we’d see lots of 5-4 decisions reaching “liberal” conclusions.

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    @UrsulaHennessey

    Adam, were you a fly on the wall in our car this weekend? My goodness, my husband and I pointed out the exact things you did — sinister art, “widely accepted,” their kooky definitions of “conservative” and “liberal,” etc. I have honestly gotten to the point where I am immune to the Times‘s wild and wacky left-wing nonsense. I am only incredulous that others don’t see it the same way. I mean, it’s so obvious!

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