The Most Conservative Court Ever?

An old academic joke has it that "sociology is the study of the obvious."  The same could be said for this article, which reviews some recent studies and concludes that Court Under Roberts is Most Conservative in Decades

The article points out that the Roberts Court is the most conservative since at least 1969, when Chief Justice Burger ushered in a reign of legal conservatism.  In fact, with the exception of the Warren Court from 1953 to 1969, the Supreme Court has been a markedly conservative institution, favoring employers over employees, prosecutors over criminal defendants, corporations over the little guy.  Somewhat frighteningly, the article says that four of the six most conservative justices since 1937 are now sitting on the Court.

This isn't news to those of us who represent employees and unions.  The Court has been unremittingly hostile to employees, and generous to employers.  Curiously, when it comes to "reverse" discrimination, the Court has been more favorable to employees, as last case of  Ricci v. City of New Haven demonstrates.

Unfortunately, the conservative trend is unlikely to change, even though Obama selected Sotomoyor and it looks like Kagan will be seated.  That is because Sotomayor and Kagan are both replacing "liberal" justices.  The biggest difference on the Court has been the selection of Alito, who replaced O'Connor.  I would hardly call O'Connor a liberal.  However, she was often the deciding vote, and due perhaps to her years of experience as a politician, less given to ideological extremes then the junior justice from Pennsylvania.


The right has for years vilified liberal judges, accusing them of "judicial activism" and undermining the will of the people.  In truth, the Roberts Court has been very active, overturning Congress, overturning Supreme Court decisions it doesn't like, and ignoring the concept of stare decisis when convenient.  The irony is that what passes for judicial liberalism these days is actually quite moderate.

There is hope that the Supreme Court will tilt more liberal if Obama gets another pick.  I wouldn't count on it though.  One major difference between the Republicans and Democrats is that when the Republicans pick a Supreme Court judge, they pick one that is, well, conservative and proud of it.  Everyone knew that Roberts and Alito were full-fledged, card-carrying Federalist Society conservatives.  Democrats, on the other hand, make cautious picks of non-ideologues who they think will be confirmed without a fight.  Sotomayor is a middle-of-the-road judge who is very "judicial," but hardly a counter to Scalia and co.  It's hard to tell with Kagan.  She's been a career government-type.  I'm hopeful she will turn out to be reliably liberal, given that her brother is a strong union supporter, according to the Village Voice.  Marc Kagan Article

The mistake the Democrats keep making is that it doesn't matter who they appoint, there will be Republican opposition.  Next time (if there is a next time) Obama should name a flaming liberal or radical to the Supreme Court.  Let's have a real debate in Congress about the nominee and his or her judicial philosophy, rather than the bloodless, passionless play that we currently have, where the nominee tries to kiss everyone's ass to avoid controversy.  And when that pick is rejected, put up another liberal, then another until one is passed.  Unless we do, then the Court will creep continually to the right, like the rest of the federal judiciary.