Contemplating the Supreme Court's Push to the Right

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The Supreme Court opened its new term Monday. As commentary swells on the upcoming cases, some observers are stepping back to consider the overall trajectory of the Roberts court. Liberals, in particular, are concerned by what they see as an unprecedented--and largely unremarked--turn to the right in past years. The Citizens United decision--much hated by liberals for expanding corporate influence in elections--is one of the landmark examples being cited, but the criticisms go beyond a mere few cases to look at the methods and thinking behind the conservative drift.

  • Stealth Conservatism  The big piece on this comes from Slate's Barry Friedman and Dahlia Lithwick, who list five "tricks" which have enabled the Roberts Court to "[take] the law for a sharp turn to the ideological right, while at the same time masterfully concealing it." One involves "stacking the deck," i.e. using cases that seem clear cut to chip away at laws to which conservatives object. There's also "misdirection: While we are watching the term's 'big' cases, it works its magic on the ones we aren't paying attention to." Then there's also the "trick" of "mak[ing] the new seem old," touching up earlier cases in odd ways, and "stealth overruling," which is "implicitly striking down an old case while claiming to do nothing of the sort."

  • An Example of 'Stacking the Deck'  "For instance," says The Washington Post's Ezra Klein, who thinks the Slate piece a must-read and picks out this part to share with his readers, "Miranda rights ... Going at them directly would cause a public outcry. So you don't go at them directly. You go after child molesters instead." Who doesn't want any evidence available used to put a child molester behind bars for as long as possible?
  • I Don't Think There's Trickery Here, protests Adam Serwer from Greg Sargent's blog at The Washington Post. "I just think the courts are, like taxes, an arena in which liberals have completely ceded the public discourse to the right." That may be partly, he suggests, because right now, "conservatives care about the courts more than liberals do. ... Liberals, to the extent they care about the Supreme Court, are often narrowly focused on preserving abortion rights."
  • How This Looks In Practice  "During the first years of the Roberts court, it has consistently ruled in favor of corporate power," summarizes UC Irvine law school dean Erwin Chemerinsky in the Los Angeles Times. Calling this the "most conservative" Court since the 1930s, he explains: "For the first time in American history, the high court has struck down laws regulating firearms as violations of the 2nd Amendment and held that the Constitution protects a right of individuals to possess guns." The federal government is now less able to "formulate remedies for the segregation of public schools." And the court has "significantly expanded the power of the government to regulate abortions." Here's where liberals are (or should be) really groaning, explains Chemerinsky:
During the five years of the Roberts court, Kennedy has been with the conservatives more than twice as often as with the liberals in ideologically split 5-4 decisions. ... The court's conservative majority could last another decade no matter who wins the White House in the next presidential elections. Absent unforeseen circumstances, Roberts, Alito, Thomas, Scalia and Kennedy will likely be on the court beyond when President Obama leaves office, even if he is a two-term president.

This article is from the archive of our partner The Wire.