The Myth of the Conservative Court

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The Supreme Court is dominated by right-wingers on a conservative activist, pro-corporate, anti-civil rights tear.

Or, perhaps, the court is driven by liberal activists who make up new constitutional rights out of whole cloth and may soon legislate a right to gay marriage.

It all depends on your point of view.

President Obama, his press secretary Robert Gibbs, Senate Judiciary Committee Chairman Patrick Leahy, other congressional Democrats, New York Times editorialists, liberal groups, and others have been attacking Chief Justice Roberts and the other conservative justices for being aggressively conservative corporate shills. These critics' goals seem to include greasing the wheels for confirmation of Elena Kagan and laying the groundwork for bolder Obama attacks on the court if it keeps messing with his agenda.

Conservatives -- who have for decades accused the court of usurping elected officials' powers to flog liberal causes -- now find themselves on the rhetorical defensive.

So the Heritage Foundation fought back on Wednesday by holding an event entitled "The Myth of a Conservative Court and Why Liberals Peddle It," with conservative icon Ed Meese, President Reagan's attorney general, moderating.

A notice for the event suggested that panelists would argue that it is "a sign of liberal vulnerability to the charge of left-wing activism that they are trying to ascribe their activist ways to others" and to "hoodwink journalists into propagating a moral equivalency between different judges that does not exist."

Which side is right? Both, to some extent. The truth is that eight of the justices have been aggressive in stretching the Constitution to topple laws that they don't like and the ninth, liberal rookie Sonia Sotomayor, appears likely to settle into a similar pattern.

With four conservative activists, four liberal activists, and all-purpose activist Justice Anthony Kennedy swinging left or right depending on the issue, this is a court that breaks a lot of crockery.

Democrats have rightly denounced the court's biggest decision so far this year, Citizens United v. FEC, in which the conservative justices and Kennedy freed all corporations (and labor unions) to spend unlimited sums of shareholders money (and members' dues) supporting or opposing federal candidates.

The majority justices' unprecedented extension of the First Amendment forfeited whatever high ground they once held in the judicial activism debate. Or so I argued here.

But the other decision most reviled by Democrats was in fact perfectly reasonable and not especially important. That was the 2007 ruling against a sex discrimination plaintiff that Congress overturned in January 2009 by adopting a bonanza for trial lawyers called the Lilly Ledbetter Fair Pay Act.

Obama and other Democrats were able to make the court's ruling against Ledbetter seem outrageous only by systematically distorting the undisputed facts.

On the other side, perhaps the most far-fetched decision by the liberal justices and Kennedy in recent years was their concoction of a national "consensus" that clearly did not exist to justify banning the death penalty for raping a child -- an 8-year-old girl in the case at hand -- no matter how depraved the rape. (See discussion at the second link above.)

Of course, there is such riotous disagreement over what the Constitution's provisions mean that interpretations seen as clearly correct by conservatives outrage liberals and vice versa. This makes it impossible to devise an objective measure of which side has abused judicial power more.

But it is possible to measure whether, as Democrats claim, the court is "conservative" in the sense of being to the right of center of public opinion.

The court has clearly become more conservative than it was since Justice Samuel Alito replaced Sandra Day O'Connor in 2006. But historical consensus and, more recently, national polls show that the justices have not been consistently to the right of center since 1937.

Indeed, since the 1970s they have strayed more often to the left than to the right. The Court's majority remains left of center on issues including abortion, religion, the death penalty, and gay rights (on which Kennedy usually sides with the four liberals) and close to the center on racial preferences and gun rights (on which he usually sides with the four conservatives).

So it should be no surprise that a Gallup Poll in early May found that 42 percent of respondents wanted a nominee who would make the court more conservative -- and only 27 percent wanted a nominee who would make it more liberal.

What about Leahy's mantra that the court "always seems to side with the big corporate interests against the average American"? Make that "sometimes."

In "Court Defies Pro-Business Label," a March 8, 2009 Washington Post article, reporter Robert Barnes stressed a recent decision exposing pharmaceutical companies' to state court lawsuits even when they comply with federal safety rules. He also noted that since the May 2007 Ledbetter decision, "the court has consistently sided with employees who have alleged discrimination."

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Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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