The Supreme Court Isn't Actually All That Conservative
While it has been moving somewhat to the right, liberals still win many cases, and the Court does not enact the conservative wish list
You saw the headline. That’s right. Everything you have heard about the Supreme Court is wrong! Well, maybe not everything.
But yes, the Roberts Court, the Court that is supposedly so horrible that it must be packed with liberal justices to save democracy, is not, in fact, all that conservative by historical standards.
Now on one level, this point is obvious, banal, and not important. We know that this is an institution that once decided Dred Scott v. Sandford (holding that states had no power to free slaves within their territories) and Plessy v. Ferguson (holding that states had the power to mandate racially segregated trains). One would hope, and assume, that today’s court is not that conservative.
But I mean something else. I mean the Stone, Vinson, and even Warren courts. The pinnacle of liberal dominance of the court system, from FDR through LBJ. Today’s Supreme Court is not that conservative by those standards.
Take yesterday’s controversial decision in Jones v. Mississippi. That decision held that a previous decision, Miller v. Alabama, which invalidated mandatory life imprisonment for juveniles, was satisfied so long as the trial judge exercised discretion in imposing the life sentence. Jones was widely criticized online, with the usual practice of quoting liberally from the dissenting opinion. How could the Roberts Court possibly throw these young people’s lives away?
And I am not here to defend Jones. I would have voted with the dissenters. But… Miller was a 2012 decision. It was itself a product of the Roberts court. The Supreme Court of Roberts’ predecessor, William Rehnquist, which was supposedly less conservative than the current court, held that executing juveniles was constitutional (the Roberts court overturned that decision in 2010). The Warren court and its predecessors imposed no limitations at all on imposing massive punishments on juvenile offenders. I understand people were disappointed with the reasoning and result of Jones, but thanks to the Roberts court, for the first time in history, juvenile offenders have a right to argue to the Court for leniency in sentencing no matter what the statute might say. And that right was even made retroactive by the Roberts court, a step that the Warren Court did not even take with many of its watershed rulings such as Miranda and the Fourth Amendment exclusionary rule.
OK, so you say, but that’s just one case. What about other areas of law? Let’s take free speech. In 2021, you have the right to burn the American flag (put in place by the Rehnquist court and never seriously questioned by the Roberts court), make animal sacrifice videos (Roberts court), and lie about having won military honors (Roberts court). In contrast, the Warren court upheld laws against burning your draft card, and the Vinson court upheld laws meant to prosecute Communists and put the Communist Party out of business.
Or take obscenity. There are few obscenity prosecutions now, because the Republican led courts of Warren Burger and William Rehnquist narrowed obscenity law to the point where it rarely applies to anything. The Roberts court, again, has not called any of these decisions into question, including the landmark ACLU v. Reno case that protects internet pornography. In contrast, back in the days of Warren and before, there were numerous obscenity prosecutions, and the Supreme Court reversed some individual convictions but never really imposed an effective limit on obscenity laws.
I can hear you saying “what about Citizens United?”. Well, it’s true, it’s harder to enact a campaign finance law now than it was in the 1960’s. But that’s because free speech law, starting with the pre-Roberts, 1976 Buckley v. Valeo decision, has gotten stronger, not weaker. The Court’s limitations on campaign finance laws have generally been supported by the ACLU and other free speech advocates.
In the area of reproductive rights, there is no contest. Before the Warren court, during the Vison and Stone eras, there were no constitutional rules at all in this area. Warren’s court did decide Griswold v. Connecticut, which created a very narrow right that married couples had a right to purchase birth control pills and devices. Since Roe v. Wade came down in 1973, the central conservative judicial project has been to overturn it. It hasn’t happened yet. Now- I will concede on this one, it probably will be overturned eventually by the current court. But decisions upholding partial birth abortion bans and laws imposing some procedural headaches on women seeking abortions (the current status quo), while bad, are not the same thing as upholding an abortion ban. Women during the Stone, Vinson, and Warren eras died in significant numbers from botched illegal abortions. Abortion, for now, continues to be legal under the Roberts court. And the right to purchase contraceptives, whether you are married or single, is not under threat at all.
Numerous other rights have been created or expanded by the Roberts court:
During the Warren, Vinson, and Stone eras, sodomy statutes imposing prison sentences on gay men were constitutional, gays were prosecuted and denied security clearances, and gay bars were raided and closed. Now, thanks to the Roberts court’s decision in Obergefell v. Hodges, gays have a constitutional right to same sex marriage.
Gays and trans people never had any right to sue an employer who fired them because of their sexual orientation and gender identity during the Warren, Vinson, or Stone eras. Now, they do, thanks to Bostock, another Roberts court decision.
The Vinson court decided Johnson v. Eisentrager, which denied “enemy aliens” held by the US overseas any right to file habeas petitions. This case remained good law throughout the Warren court. The Roberts court decided Boumediene v. Bush, affirming the supposed “enemy combatants” detained during the war on terror habeas rights.
I could go on….
There are also a number of other areas, like Roe, where the predicted backsliding has been limited. A favorite talking point of liberals supporting court packing is that the Court invalidates congressional statutes as outside the commerce power. This resonates historically because this was what the New Deal era Hughes court did to FDR that ticked FDR off so much. But in fact, that hasn’t happened in the Roberts court. The only statute that has been held to exceed the commerce power was Obamacare, and the Court upheld it anyway as a valid exercise of the tax power. (The Medicaid expansion was cut back, but under a different doctrine, not the Commerce Clause.) All this talk of rollback of the federal government, of the Court invalidating anything Obama or Biden does, hasn’t happened.
Similarly, despite Bush v. Gore being one of the lowest moments in the Court’s history, where a conservative majority really did decide a presidential election by stopping vote counts, the Court has not actually reversed any more election results. Indeed, the Republicans filed numerous cases in the wake of the 2020 election, and the Court did not hear any of their appeals. There was no Bush v. Gore II.
Miranda, the right to government funded counsel in criminal cases (Gideon v. Wainwright), New York Times v. Sullivan, one person one vote- you can go down the list of Warren court doctrines that the Roberts court has not made any serious attempt to curtail.
My point in all this is not to say that the Court is really liberal. It obviously isn’t. Liberals are often up against it when their cases are accepted by the Court, and I’ve specifically criticized the Court for such things as eviscerating the law that allows suits for international human rights violations. The worst moments of the Roberts Court, such as the Shelby County v. Holder decision gutting the Voting Rights Act, are very bad.
It’s to say that a lot of what is actually happening is that liberals, like conservatives, have a wish list of things they want the Supreme Court to do. And the Court, as it often does, grants each party some of its wishes and denies others. Indeed, often we forget about the wishes that have been denied- in the 1990’s, there was a big push by liberals to get the Court to recognize a right to assisted suicide; the Court declined to, the decision was unanimous, and liberals quickly forgot it. The reason that you hear so much about how supposedly right wing the Court is, is because “the Supreme Court is imposing right wing views on America” and “the Supreme Court is antidemocratic” are more effective talking points than “the Supreme Court doesn’t always give us everything we want”.