How conservative is the Supreme Court? How deep is the ocean? How high is the sky?

By Megan McArdle

Cass Sunstein is complaining that liberalism isn't what it used to be:


The Myth of Balance Between Left and Right holds that the Court has a "liberal wing," consisting of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, and a "conservative wing," consisting of Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito, and Clarence Thomas. Justice Anthony Kennedy is the swing vote, the "moderate."

It should be clear, right off the bat, that something is fishy about this picture. Cautious on the lower courts, Ginsburg and Breyer were prescreened by and fully acceptable to Republicans on the Senate Judiciary Committee. Both their votes and their opinions have been far more moderate than those of the great liberal visionaries of the Court's past, such as William O. Douglas and William Brennan. Souter is a Republican appointee. His approach to constitutional law is in the general mold of Justice John Harlan, the great conservative dissenter on the Warren Court. Stevens, also a Republican appointee, was a maverick on the Burger Court, far to the right of three of its members. Contrary to what you hear, Stevens hasn't much changed in the last decades.

Here's a simple way to expose the Myth of Balance. In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.

First we would have to chop off the Court's right wing, removing Scalia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.

Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.

Then we would have to leave Breyer, Stevens, Souter, and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart. (The parallel between White-Stevens-Powell and Breyer-Stevens-Souter is very close; true, Ginsburg is somewhat to the left of Stewart in many domains, but their voting patterns and general approaches are pretty close.)

Finally we would have to assume that Roberts would vote more or less like Rehnquist (which is to say, definitely to the left of Scalia and Thomas) and that Alito would vote more or less like Burger (definitely to the left of Rehnquist).

To say the least, all this would represent a radical change in the Court's composition -- so radical that liberals cannot even fantasize about it. But this radically changed Court would be essentially identical to the supposedly conservative Court of 1980!



I remember 1980. You young people may not realize it, but back then, we didn't have these crazy touch-tone telephones you like to use to fax all your friends. We had rotary dials, with little holes for each number that you had to stick your fingers into and drag them all the way over to the right, where a touch bar known as the finger stop would register each digit. And if you wanted to call all of your friends, perhaps to invite them over for some fondue, by the end of making all those phone calls, your index finger stung from hitting the finger stop so many times, let me tell you.

Seriously: why on earth would the definition of a "conservative" court in 1980 be some sort of lodestar by which all future courts should be judged. By the standards of 1880, the current court would be a bunch of wild-eyed socialist libertine radicals bent on undermining everything that made America great. Does that entitle me to re-nominate Oliver Wendell Holmes, or his modern day equivalent?

Cass Sunstein (who graduated from law school in 1978) seems to be under the delusion that the conditions of his youth are the golden mean by which all future events are to be judged and found wanting. I mean, we all feel the same way, but most of us don't expect anyone younger to take us seriously when we drone on about how much better The Pogues were than any of this modern noise.

It seems stupid to have to point this out, but on a number of issues the public has moved rather rightward over the past generation. Naturally, the court has moved rightward too. It is not demonstrably out of step with the public on "liberal" questions like homosexuality, abortion, affirmative action, various sorts of environmental and business regulation, civil rights, campaign finance, separation of church and state, and so forth. If anything, the court is still to the left of the public on these matters.

The court is to the right of the average law professor, not to mention the average Cass Sunstein. But that's because the average law professor is to the left of the average American, and any reasonably democratic system is going to produce a Supreme Court whose mean opinion hews more closely to that of the voters than to that of any larger group from which the appointees are drawn.

This article available online at:

http://www.theatlantic.com/business/archive/2007/09/how-conservative-is-the-supreme-court-how-deep-is-the-ocean-how-high-is-the-sky/1954/