Greenburg on Deceitful Supreme Court Rhetoric

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Jan Crawford Greenburg has a nice post looking at some of the overblown rhetoric about the last Supreme Court term. Much of the criticism of this last term, from both legal scholars and legal reporters, has been wildly inaccurate, conveniently forgetting important details and drastically misrepresenting the reasoning of the majorities. This is true from both the left and the right, but I'm in agreement with her that there really has been a pretty strident panic on the left. What's particularly strange about it is that it's a reaction to a few small steps in a direction opposite of what the Warren Court and Rehnquist Court had virtually made seem inevitable, and those who have come to see the pretty radical direction of the post-FDR Supreme Court as guaranteeing leftward movement eternally have now recognized that when Republican presidents actually appoint conservative judges it has an effect.

The reality is that the five-person majority isn't remotely monolithic. Justices Scalia and Thomas are originalists. They insist on giving arguments from the original meaning of the law in question or relevant section of the Constiotution. In Thomas' case, later judicial decisions that he thinks were wrongly decided have little value in interpreting what the Supreme Court should say. Scalia is much more inclined to allow precedent to have some value given that it throws the legal system into disorder if you overturn precedent willy-nilly. But he's still somewhat resistant to such moves. They don't agree on everything, not even in theory, but they tend to argue on the basis of original meaning (Scalia usually in terms of what an informed audience at the time would have understood, while Thomas usually seeks to discover the original intent of those who came up with the language in question. Often these will lead to the same result.)

But Justice Kennedy is more results-oriented. He has principles, but they are moral and political principles, not legal principles. He overturns laws and precedents when he thinks a moral issue is at stake. He rarely gives arguments based on original meaning or original intent unless he's trying to garner votes from Scalia and/or Thomas. He cites precedent when he thinks it will get him votes from other justices. But the parts of his opinions that seem to do the most work for him (i.e. the ones that use the strongest language and argue about how high the stakes are) are the kind of thing you'd expect to see in a political election or a congressional debate. They aren't legal arguments. Many of his principles are conservative, often moderately conservative, but some of them are clearly in line with the liberal wing of the Court (e.g. on whether abortion in general should be legal, whether the government can take your property so a developer can build a Wal-Mart, on the rights of gay people to have sex, on detainee rights and executive power).

Then there are the two newest justices. Chief Justice Roberts and Justice Alito are definitely conservative, and they have usually agreed at least in part on the results with Justices Scalia and Thomas and often enough with Justice Kennedy to frustrate Justices Stevens, Souter, Ginsburg, and Breyer. But they are a different kind of justice. They are conservative not in the sense of going for politically conservative results whenever it suits them (as Kennedy would do if he were more morally and politically conservative than he is) and not in the sense of sticking with the original meaning of the law in question or the Constitution. They give much a higher place to precedent.

They see themselves as ruling narrowly and seeking incremental change. You decide the case in question and what is immediately relevant to it, and therefore you don't overturn affirmative action in a case about something else, even if the precedents about affirmative action are related to the issues you're covering. In a partial-birth abortion case, you aren't deciding whether abortion should be legal at all but are simply looking at whether the law in question is legal. This is particularly so when the vote of a justice who agrees with the precedent (in this case Kennedy) is needed to get the result you think is correct. It might involve some overruling of precedent, and it might involve weakening the precedent considerably, but outright overruling of a case about a different subject is going to be rare with these justices. It's a much slower process of change, but it's a kind of change that lasts much longer, and Chief Justice Roberts may well turn out to be the most influential Chief Justice in a long time, perhaps even moreso than Earl Warren.

If you believe the rhetoric from the right, you'd get the sense that Chief Justice Roberts and Justice Alito, like Justice Kennedy, are just like Justices Stevens, Souter, Ginsburg, and Breyer. That's nuts. Justice Kennedy often supports conservative results, but his reasoning is very different from the other conservative justices. I think he counts as an often-right-leaning moderate. Chief Justice Roberts and Justice Alito are incremental, narrow-ruling conservatives. Justices Scalia and Thomas are more ideological conservatives but not in a political way. They are legal conservatives with an overarching judicial philosophy that focuses on a few concerns, whereas Chief Justice Roberts and Justice Alito have a broader-ranging set of concerns that will also tend to lead them to narrower but still conservative results. This will lead to a majority in a conservative direction much of the time. It would take replacing one of the four liberal justices to get this into a solidly conservative Supreme Court, but that doesn't mean no change has been made, as many on the right have been pretending.

On the other hand, it is not a Supreme Court of five solid conservatives. Justice Kennedy really is a swing voter, and his willingness to side with the left-leaning justices in 5-4 cases has turned out less often with the particular cases the Court has looked at in the last term. But he (and not Justice O'Connor) was the one who gave the liberals on the Court the fifth vote necessary to take people's homes away to give a big business development rights (another reason the rhetoric about conservatives being for big business and liberals for individual rights is hogwash; Greenburg fails to mention this sort of thing). This is the justice who provided the fifth vote to uphold Roe v. Wade, even if he later felt betrayed when Justice O'Connor applied that opinion more broadly against partial-birth abortion in a later case. He agreed with the four liberals on the issue of anti-sodomy laws when even Justice O'Connor opposed their reasoning. (She gave a different reason.) He has consistently sided with the liberals on the Court against President Bush's policies in the war on terrorism. Social conservatives, judicial conservatives, and war hawks alike are not happy with him.

Even if Justice Stevens, say, were replaced by someone as conservative as Judge Emilio Garza or Judge Edith Jones, giving a solidly conservative majority despite Kennedy's resistance to the four conservatives, it would not be a monolithic conservative majority. You would have at least two incrementalist, narrow-ruling conservatives and at least two judicially ideological conservatives. You would still have splintered opinions leading to results but for different reasons, which achieves less and offers a less serious precedent to be more easily resisted later. It will be a long haul for judicial conservatives to make serious change, given Chief Justice Roberts and Justice Alito's resistance to overturning precedent outright and their difficulty following the wider-ranging results of Justices Scalia and Thomas.

But it is very unlikely that a Democratic president elected in 2008 will be able to turn the Supreme Court back left. They could indeed extend the spots currently held by liberals for a much longer time, thus resisting further movement to the right. But there isn't any real reason to expect the conservative justices to retire or die anytime soon. This is something liberals can lament. It is not, however, as bad (in their view) as many have been making it sound, not because there's that much they would enjoy in this last term but because the kinds of things I've been seeing make it sound as if all five conservatives on the Court are as extreme as the most conservative and because they insist on interpreting their motives as being against the ordinary person and the downtrodden in favor of the privileged and big business. It's as if there are no legal reasons at all in the judicial process. It's as if mere outcome is the only thing that matters.

Now conservatives often wrongly take liberals on judicial matters to be motivated only by outcome. Sometimes that happens, perhaps even often. But it's not always the case. But these court-watchers aren't doing that point any good by treating conservatives who give judicial and legal reasoning as if they don't do so. It just furthers the view on the right that liberals don't care about following the law.


Thanks for the excellent review of the differing styles among the different Supreme Court justices. I have often wondered how these justices sometimes make their decisions, especially the ones that seemingly are inconsistent at times.

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