Is the Contemporary Supreme Court Really That Conservative?
posted by Brandon Bartels
Adam Liptak’s extensive analysis in the New York Times a few weeks ago presents some compelling empirical trends from the Roberts Court era. Liptak presents some bold conclusions, arguing that the Roberts Court of the 2009 term “became the most conservative one in living memory.”
Some research I am conducting (with my co-author, Christopher Johnston) on public perceptions of the Supreme Court asks, among other things, whether the contemporary Supreme Court is really all that conservative, either objectively (looking at the Court’s raw outputs) or from the American public’s point of view. It has become a sort of kneejerk reaction for the media, legal commentators, and academics to label the contemporary Court as “conservative.” This assumption can partly be attributed to the fact that Republican presidents have dominated Supreme Court appointments over the past 40 years or so. Indeed, since President Johnson put Thurgood Marshall on the Court in 1967 (Johnson’s last appointment), 12 out of the last 16 justices have been appointed by Republican presidents. Justices Ginsburg, Breyer, Sotomayor, and Kagan are the only Democratically appointed justices in this era.
But in recent times, of course, conservatives have not dominated or dictated decision outcomes on the Court, with O’Connor and Kennedy — conservative leaning swing justices — joining the liberal justices on some high-profile decisions. Thinking about some of the Court’s major decisions in the 1990s and 2000s, many high profile and legally significant liberal decisions emerged. Granted, there have also been several high profile conservative decisions, but one would not necessarily expect a supposedly conservative Court to produce as many significant liberal decisions as we have seen. To get an empirical sense of what I am talking about, Figure 1 below displays two graphs. The top graph, Figure 1a, presents the annual percentage of liberal decisions produced by the Court from the 1953-2008 terms of the Court for all cases decided by the Court. The bottom graph, Figure 1b, displays Supreme Court liberalism in highly salient Supreme Court cases that receive ample attention from media and elite discourse. To measure salience, we use Epstein and Segal’s (2000)1 measure for whether or not a decision was covered on the front page of the New York Times the day after the ruling. Data on the Court’s decisions come from the Supreme Court Database, where decisions are coded as liberal or conservative following the standard coding scheme.2 The smoothed solid line in each graph is a non-parametric line of best of fit (lowess, or locally weighted smoothing), which allows one to visualize the overall trends of the Court’s policymaking.
Consider first Figure 1a. While it is clear that the Court has taken a significant right turn since the Warren Court era, the data suggest that the Court — spanning from the Burger Court to the present — is not nearly as conservative as what might have been expected given the number of Republican-appointed justices on the Court. Note the number of terms where the Court, even during the Rehnquist and Roberts eras, approached and sometimes surpassed a 50% liberal rating. During these two eras, the percentage of liberal decisions averages about 45%, suggesting the Court should essentially be considered as moderate, or perhaps slightly right of center, when thinking about the totality of its decisions over time.
FIGURE 1: Supreme Court Liberalism, 1953-2008 Terms
Turning to Figure 1b, which considers the Court’s ideological tenor in highly salient cases, what is particularly striking is that during the Rehnquist and Roberts eras, which are supposedly conservative Courts, the Court has produced more liberal decisions (58%) than conservative decisions in these most salient cases. In 12 out of the 19 terms during the Rehnquist Court, the Court hit or surpassed a 50% liberal rating. And in the last 8 terms of the Rehnquist Court (1997-2004), the Court’s liberal rating averages around 63%, which rivals the liberal rating for portions of the Warren Court. All four terms of the Roberts Court included in the graph show liberal ratings of 50% or greater (recall that the 2009 term is not included in the graph). The Burger Court also produced several terms with relatively high liberal ratings in high-salience cases. Thinking about some of the significant decisions that emerged from the Rehnquist Court of the 1990s and 2000s, the liberal trends in Figure 1b should not come as a huge surprise. The Court has issued liberal decisions on cases of significant legal importance that have served as lightning rods for broader political debates and have drawn the ire of conservative leaders. Examples include the University of Michigan affirmative action decision that upheld the use of race as a factor in admissions (Grutter), Lawrence v. Texas, the enemy combatant cases, the upholding of Miranda in Dickerson, the invalidation of the death penalty for juveniles and those with mental retardation, the invalidation of school prayer at high school football games, and the Court’s invalidation of state laws banning partial-birth abortion, to name a few. Adding fuel to the fire for many conservatives is the Court’s consistent endorsement of Roe v. Wade. While Planned Parenthood v. Casey significantly altered the Roe decision by gutting the trimester framework and allowing states significantly more latitude in passing abortion restrictions, it still upheld the core of Roe, which is that a woman has a constitutional right to have an abortion.
As I have noted, there certainly have been some significant conservative decisions as well in the contemporary era. But on balance, the data show that in these highly salient decisions, the contemporary Court has generally produced more liberal decisions than conservative ones. Is the New York Times more likely to cover liberal decisions on the front page, thus threatening the validity of the salience measure? I do not think this a large concern. The NYT salience measure has good face validity, and the decisions that appear on the front page are the blockbuster cases, regardless of whether they are decided liberally or conservatively. On the whole, when considering both Figures 1a and 1b, it would be very difficult to justify labeling the contemporary Court as “conservative.” It would probably be most fair to label the Court as moderate, though some might even consider the Court as moderate-to-liberal, given the Court’s outputs in high-salience decisions.
Our research goes on to examine American citizens’ perceptions of the ideological tenor of the Supreme Court’s policymaking. Many in the mass public perceive the Court as taking a moderate, case-by-case approach to its decision making. But a significant proportion of citizens, particularly conservatives, perceive of the Court as liberal in its decision making, a perception that has a rational basis given the data discussed above. Also, a significant proportion of the public perceives of the Court as conservative. Our work addresses several other aspects that are beyond the scope of this post’s inquiry. Ultimately, we show that “subjective ideological disagreement” — incongruence between an individual’s own ideological preferences and their perceptions of the Court’s ideological tenor — has deleterious consequences for legitimacy orientations toward the Court among Americans.
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1 Epstein, Lee, and Jeffrey A. Segal. 2000. “Measuring Issue Salience.” American Journal of Political Science 44:66-83.
2 To code liberal and conservative decisions, I follow the widely-used convention employed by the Supreme Court Database and numerous political scientists. For instance, in civil liberties and rights cases, a liberal vote favors an individual challenging a government restriction of a civil liberty or right, while a conservative vote favors the government restriction. For a further explanation of other issues, see the Supreme Court Database codebook, variable 36 (p. 45).
August 18, 2010 at 9:25 am
Posted in: Supreme Court
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Responses (5)
A.J. Sutter - August 19, 2010 at 3:01 am
The SCDB codebook variable DIR includes five sub-variables (plus one more for which DIR takes on an indeterminate value). Can you present how the cases break down according to the subvariables, rather than in an aggregate, as you have done above?
Also, to say that you followed a “widely-used convention” doesn’t eliminate the possibility that this convention isn’t applied in a uniform manner, and that some of your results might still be an artifact of your particular choices. E.g., the SCDB guideline is that “pro-female in abortion [decision]” merits liberal. You point out that Planned Parenthood v. Casey upheld a woman’s right to an abortion, even though it allowed states to impose more restrictions; this sounds like an argument that the decision is “pro-female”. (Indeed, it sounds like an argument that any decision that limits a “liberal” precedent, but stops short of overturning it, merits a “liberal” score.) Arguably, though, the opening of the door to more restrictions merits a conservative score. How did you in fact score that case?
William Corteal - August 19, 2010 at 4:05 pm
I agree with the above response. The initial problem is what does “Conservative” mean in these cases? Conservative could refer to a political position, which changes radically over time (Goldwater arch-conservatives would be deemed moderates on the court today, as an example).
Conservative in judicial demeanor? Conservatism in this case refers to the traditional definition of not wanting to deviate from the status quo.
The SCDB meets neither of these definitions, but goes to what I believe is an Originalistic interpretation of judicial philosophy as it relates to key Constitutional periods, primarily during the writing and ratification of the Constitution and Bill of Rights, or during the Civil War amendments.
This then suggests that the pro-gun rights rulings against government regulation (DC v. Heller and McDonald v Chicago)should be classified as “liberal”. This would be because the ruling was against goverment regulation and for personal rights.
The classification would not meet the common understanding of what it means to be conservative or liberal in relating to either political viewpoint or judicial termperment. I believe that you are trying to state that the current court isn’t that Conservative, but I believe that the data fails the semantical implication of your article.
Hans - October 4, 2010 at 11:23 am
Many of the decisions by the Roberts Court that liberal journalists claim ignored past precedent actually followed them faithfully.
Take the attack on one Supreme Court decision, the Seattle School case (Parents Involved in Community Schools v. Seattle School District No. 1), which struck down racial quotas in the schools. Public opinion polling shows the public agreed with that decision.
Some liberal journalists peculiarly claim that that decision should have upheld rather than struck down the challenged use of race based on one past Supreme Court decision (Grutter v. Bollinger (2003)), even though most of the Supreme Court’s decisions strike down the use of race.
But even the one case they cite, Grutter, provides no basis for a different ruling in the Seattle case. The Grutter decision upholding affirmative action in the University of Michigan’s law school expressly FORECLOSED the Seattle School District’s race-based plan, since it said (a) you can’t use race in a mechanical way (which is why the affirmative action in Grutter v. Bollinger’s companion case, Gratz v. Bollinger, was struck down — it assigned a mechanical weight to race and other factors for admission to the University of Michigan undergraduate college), and (b) expressly said that “racial balancing” is constitutionally forbidden (Seattle, unlike the University of Michigan, expressly and openly race-balanced, fitting school racial percentages to demography). Both of these criteria cut AGAINST the Seattle school policy invalidated in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). The Seattle Schools used race in a mechanical way like the invalid policy in Gratz — not an amorphous way as in Grutter. And they obviously engaged in “racial balancing,” which the Grutter decision expressly said was forbidden. (This is putting aside the fact that Grutter allowed race to be used at all based on “academic freedom,” a higher-education notion that probably does not apply to K-12 schools like Seattle – meaning they arguable could not use race even under circumstances otherwise permitted by Grutter).
Liberal journalists apparently think the Roberts court should have ignored the many prior Supreme Court decisions limiting the use of race (Croson, Bakke, Gratz, Wygant, Adarand, etc.) while expanding on the few decisions upholding the use of race (like Grutter). But it’s not clear why. Stare decisis doesn’t apply just to liberal decisions, nor does it allow many Supreme Court decisions to be ignored to expand the reach of the few – especially when doing so contradicts language found even in those few that are purportedly being followed.
Hans - October 4, 2010 at 11:04 pm
Slate’s Dahlia Lithwick falsely claimed on September 26, 2009 that in the Supreme Court, “big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door.”
That false claim is utterly inconsistent with reality. Over the last dozen years, the death penalty has been dramatically cut back in cases like Roper v. Simmons (2005), as the Supreme Court has invalidated the death penalty when imposed on the “retarded” (even the mildly retarded) or juveniles (even 16 to 18 year-olds), or when imposed by judges rather than juries (as state laws long provided).
The Supreme Court overturned thousands of sentences given to criminal defendants in cases like U.S. v. Booker (2005) and Blakely v. Washington, regardless of defendants’ guilt, based merely on the fact that judges, rather than juries, had made findings related to those sentences. The supposedly “right-wing” justices Roberts, Scalia, and Thomas joined in these decisions.
Environmentalists won many cases, including one of the most economically-significant decisions ever — Massachusetts v. EPA (2007) — which potentially opened the door to EPA regulation of virtually every human activity, on the grounds that virtually all activity (from industrial production to farming to cars) emits carbon dioxide. That decision also created a special rule of standing to allow state attorneys general to bring lawsuits that would otherwise be thrown out as meritless for lack of standing.
The Supreme Court recently allowed businesses to be sued even for products the FDA deems to be safe and effective, in Wyeth v. Levine (2009), in a ruling that Ted Frank at Point of Law called the most anti-business decision in 43 years.
The Supreme Court has usually broadened businesses’ liability for discrimination against female and elderly workers. It continuously expanded the definition of sexual harassment, overturning earlier limits on vicarious liability (in Faragher v. Boca Raton (1998)), allowing institutions to be sued based on the acts of non-employees (in Davis v. Monroe County (1999)), and rejecting longstanding lower-court limits on lawsuits where there is no economic or psychological harm (in Harris v. Forklift Systems (1993)). It also allowed businesses to be sued for discrimination against elderly workers even absent any showing of discriminatory intent or differential treatment (in Smith v. Jackson (2005)). All of these decisions overturned lower court rulings against plaintiffs. The Supreme Court often rules against business in discrimination cases.
In short, Dahlia Lithwick’s perception of the Supreme Court bears no relation to reality.
Steven - September 22, 2011 at 11:17 am
Supposed ideological subjectivity, when involved in the perceptions of the Supreme Court’s order initiate a variable factor within the collective consensus of the people. While on a case-to case (moderate) balancing understanding in follow of the Supreme Court’s ruling, shows a spectrum of liberal/conservative waivers, case in point and should therefore be the priority for the subjectivity of a person within the rule of the Supreme Court. Lean to the left but hold down the right. Case to case. One day at a time.
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