What Conservative Court?

This outlook is especially useful today, because it's equally axiomatic among those who write and produce television news that today's Supreme Court has been hijacked by conservative ideologues, a claim supported by neither history nor common sense.

Before the High Court handed down its decision in the landmark Michigan affirmative action case, the evening news anchors sounded this refrain over and over again. We will hear it once more before the decision in the Pledge of Allegiance case is announced. The assumption of Rehnquist Court conservatism also prefigures much of the academic literature on the subject of modern Supreme Court politics.

Since conservative jurist William Rehnquist was appointed Chief Justice, as the story goes, the Court has moved demonstrably to the right of the American people. According to the most vocal critics, Rehnquist and his ideological allies have presided over a revolution in the domain of states' rights.

Ordinary Americans can be forgiven for wondering why the autonomy of state governments over state affairs ruffles so many feathers, especially in light of the 10th Amendment. ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.") Of course, many liberals tend to worship at the altar of the Federal Government, which they see as the ultimate vanquisher of inequality and injustice.

But that's an argument better left for another day. For the moment, I'd prefer to vanquish the myth that the Rehnquist Court can profitably be described as "conservative."

The myth might have merit, were it not for the failure of its proponents to ground their reasoning in the broader context of Supreme Court history or the current American political landscape.

Is today's Supreme Court conservative? Yes, if by "conservative" we mean to the right of the Warren Court. Under the guidance of ultra-liberal Chief Justice Earl Warren, the Supreme Court in the 1960s never met a Constitutional right it couldn't invent, especially if it benefited minorities, criminals or other "disadvantaged" groups. The Warren Court is the touchstone for modern liberal judicial activism, and we can all be thankful that Chief Justice Rehnquist has ordered his troops to march a few paces right.

A more sober analysis of the Rehnquist Court's performance and personnel would yield more sober results. There are liberal members, conservative members and a handful of moderate swing voters who must be mollified. Accordingly, its decisions aren't consistently in lockstep with either ideological fringe.

Either way, the Court had dealt crushing blows to conservative policy preferences on more than a few occasions.

If you're planning to cast your ballot for Senator Kerry this November, I would imagine you favor expansive abortion rights, affirmative action as a staple of college admissions policy and a regime of onerous, free-speech killing campaign finance regulations. Well surprise, surprise! This Supreme Court, full of those pesky conservative operatives, has affirmed all three positions under Rehnquist's watch.

Let's go to the highlight reel. In 1992, the Court majority in Planned Parenthood v. Casey upheld the odious 1973 ruling in Roe v. Wade. Justice Sandra Day O'Connor, appointed by then President Reagan despite her pro-abortion stance, authored the definitive opinion. Roe was sacrosanct. Abortions would continue largely unfettered.

Fastforward to June 2003. After months of heated demonstrations by friends and foes of affirmative action, the High Court handed down its decision in Gratz v. Bollinger, a case testing the constitutionality of the University of Michigan law school's racially conscious admissions program. The program itself-a transparent quota system-was not narrowly tailored enough to satisfy the guarantees of the Equal Protection Clause (a victory sullied somewhat by the conclusion that "diversity" is a "compelling state interest"). However, the Court threw affirmative action programs a life preserver by ruling that race could be a factor in admissions decisions, as long as it wasn't the overriding factor.

This is roughly akin to an RA explaining, with a wink and a nod, to his residents, "Sure you can throw a party...just make sure I don't hear it." In this circumstance, the Supreme Court didn't want to be put in the uncomfortable situation of actually having to enforce what it had decreed. End result? White students can still bank on discrimination and disregard of academic achievement when they apply to college, and they have no one to thank but the "conservative ideologues" on the Rehnquist Court.

Just a few months thereafter came the decision in McConnell v. Federal Election Commission. Coming in response to the passage of the McCain/Feingold campaign finance bill, the case pitted the bill's regulatory burdens on soft money donation and issue advocacy against the text and history of the First Amendment. Senators McCain and Feingold were delighted to learn they had no greater ally than the "conservative" Supreme Court. Unfortunately, defenders of free speech could not make a similar boast.

Let's recap the findings. The Rehnquist Court has issued opinions upholding the right to murder unborn children, give black students preferential treatment by virtue of skin color and exempt what obviously amounts political speech from the protections of the First Amendment-the very same First Amendment invoked to make exotic dancing an inviolable right! Go ahead, name one conservative politician who could espouse these positions without severely ticking off Republican voters.

Would a conservative Supreme Court invent a Constitutional right to homosexual sodomy? It did, in Lawrence v. Texas. Would a conservative Supreme Court allow a state to deny an academic scholarship to an otherwise qualified student because he intended to channel the scholarship money into the pursuit of a theology degree? It did, in Locke v. Davey, decided just weeks ago.

Will this conservative Supreme Court eventually strike down the 1996 Federal Defense of Marriage Act, thereby foisting gay marriage on an unwilling populace? I think it will, especially in light of Justice Kennedy's sweeping opinion in Lawrence, which announced the fundamental status of marriage rights and foreshadowed the invalidation of laws reflecting "animus" against homosexuals. With the liberal media uniformly viewing the struggle for gay marriage through the lens of civil rights, it takes no special insight to envision Justice O'Connor and those to her left painting DOMA as a vehicle for the transmission of prejudice and bigotry.

Most damning to the conception of the Rehnquist Court as conservative is its unprecedented-and dare I say antidemocratic-fondness for the elusive concept of "international law." Six of the Court's nine members have either incorporated foreign legal reasoning into their opinions or endorsed the practice by signing onto these opinions. United Nations resolutions, anti-American rumblings from the bureaucrats at the Hague-really, any international law the justices happen to find appealing-all of these things are beginning to seep into Supreme Court decisions and trespass on American sovereignty.

Have these rogues on the Rehnquist Court forgotten why we fought the American Revolution? Taxation without representation was repugnant to the colonists because they sought a government of the American people, by the American people and for the American people-not the British, not the European Union, not any authority to which the American people hadn't given their consent. If laws made by those unaccountable to American voters can be construed by courts as constraining those who are accountable to American voters, then the dreams of our revolutionary forefathers have indeed been betrayed.

Keep in mind, "conservatism" gets its name not because conservatives are reactionary or opposed to progress, but because they consider the core principles of the American founding to be worthy of "conservation." Say what you will about the American founding, but its "conservation" is surely not the aim of justices for whom foreign law supercedes American law whenever the two are in discord.

Noted Justice Scalia in his dissent from the majority opinion in Lawrence-exhibit A in the Supreme Court's nascent project of "internationalizing" the U.S. Constitution-"this Court...should not impose foreign moods, fads, or fashions on Americans."

I won't argue that there are no conservative justices on the Rehnquist Court. Indeed, the label applies nicely to the Chief Justice himself, and Justices Scalia and Thomas are even more deserving.

I also won't argue that Rehnquist Court decisions have never affirmed conservative policies. After all, school voucher programs-even programs under which voucher recipients may opt for religious education-were found Constitutional.

But whenever I hear the media trotting out the tired canard of Rehnquist Court conservatism, I can't help but wonder: with conservatives like these, who needs liberals?

Liberal MUST conclude that today's Supreme Court is conservative, else how do they explain the Court's ruling in favor of the Bush election in Florida.

It just HAD to be those nasty conservatives that did that to dear Algore, out of spite!

You know it's funny, Scalia was only able to get into the Court because he was appointed under the shadow of the HUGE debates the Senate was having over Rehnquist being made chief justice. Scalia never would have been appointed had that controvery not been raging over Rehnquist being ultra-conservative.

The Court has three (mostly) solid conservatives: Scalia, Rehnquist, and Thomas; four liberals: Souter, Stevens, Breyer, and Ginsberg; and two swing votes, Kennedy and O'Conner. So I don't know how a court with more liberals than conservatives has been labeled "conservative." By far, the most incoherent justice is O'Connor, whose vote seems to be governed by political concerns - if she knows she will be the swing vote on a big issue, she almost always votes liberal, cause she can't take the heat. This is why her opinions are often so convoluted and illogical - because for political reasons she votes against what she really thinks the law dictates.

Is today's Supreme Court conservative? Yes, if by "conservative" we mean to the right of the average American sporting a "John Kerry for President" sticker on his rear bumper. Agree or disagree with Senator Kerry's platform, it is hardly a platform that both blue states and red states can unreservedly embrace.

This about covers it. The average American reporter finds the Democrat party to mirror his, and his middle to upper class urban associates's, views.

Therefore anything to the right of the DNC is rightwing. That this includes not only the center, but also the center/left is a point the press is purposely oblivious to.

So the court which has 3 conservatives, 4 leftists, and 2 judges somwhere in between center and center/left is rightwing to the press's jaundiced eye. After all, there are 5 judges more conservative then they!

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.