Over the weekend, the NYT printed an article calling the Supreme Court under C.J. Roberts the “most conservative in decades.” “The court not only moved to the right,” the article said, “but also became the most conservative one in living memory, based on an analysis of four sets of political science data.”
We admit to reading the article with a fair amount of skepticism. Whenever political science folks or sociologists or others of their ilk start talking about the Court being “conservative” or “liberal,” we get uncomfortable. The words have very different meanings for politicos than they do for jurists. A judicial conservative is not necessarily supportive of right-wing politics. A jurist who is politically conservative may well be fairly liberal in his jurisprudence, especially if he’s using his opinions to further a political agenda.
The article did nothing to assuage our discomfort. As we feared, it conflated the concepts of political and judicial conservatism. The article really focused on whether rulings were more or less likely to be favored by conservative political platforms.
To be fair, the headline really is misleading. The article itself says at least twice that “the recent shift to the right is modest.” And it does point out not only that “the court’s decisions have hardly been uniformly conservative,” but also that “the court’s decisions are often closely aligned with or more liberal than public opinion.”
But the basis of any analysis is its presumptions. And the presumptions applied here are beyond simplistic. “In the database, votes favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights are, for instance, said to be liberal. Decisions striking down economic regulations and favoring prosecutors, employers and the government are said to be conservative.” Forget being beyond simplistic, it’s downright misleading.
Notice that the focus is on who prevailed in the case, not why the Court sided with them. Just because a criminal defendant won his appeal, for example, that does not mean the justices were being liberal when they sided with him. The Melendez-Diaz case, after all, pretty clearly restrains the prosecution and favors defendants, by requiring chemists to testify at trial as to their analysis of alleged drugs. Who wrote the majority opinion? Scalia. Hardly a liberal. His reasoning? Very conservative: this is little more than an application of existing 6th Amendment law under Crawford. Scalia is one of the most conservative justices, and yet he’s also the Court’s biggest protector of 6th Amendment rights.
Similarly, just because a civil-rights claim prevails, that has nothing to do with whether the decision itself is particularly liberal. And if the civil-rights claimant loses, that doesn’t mean the decision was conservative.
The analysis is flawed from the get-go, because it focuses on the wrong thing entirely. The focus should not be on who won, but why they won.
We also made a face when we read this bit: “The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts. But the ideological direction of the court’s activism has undergone a marked change toward conservative results.”
No, no and no.
Judicial activism is not measured by finding laws unconstitutional. Judicial activism is creating new law where none existed, or legislating from the bench — it is another way of saying the court is exceeding its authority. When the law is different from how a judge thinks it ought to be, an activist judge changes the law. Merely applying existing constitutional law, however, and finding that the legislature has passed a statute that happens to be unconstitutional — that is precisely what the courts are supposed to do in the first place. It is the opposite of judicial activism.
Reversing precedent isn’t so much a measure of activism, either. Some precedents ought to be reversed for perfectly good reasons, such as a change in societal circumstances that necessitated the precedent in the first place. There is nothing activist about saying “applying the Constitution to fact set A resulted in rule X, but now we have fact set B and rule X doesn’t follow any more.” What is activist is deciding not to reverse a no-longer-applicable precedent, in order to advance some policy interest. (Grutter, anyone?)
Recently, there’s been an Orwellian movement on the left to redefine the phrase “judicial (more…)