- Conservative, Liberal and Justice Roberts
The NY Times ran an interesting and lengthy analysis of the Roberts Court on Sunday, including a computer analysis that purports to show the court is the "Most Conservative in Decades.”
It brought to mind the quotation of Andrew Lang about the drunken man who used a lamppost for support, rather than illumination.
According to the Times, “In [the five years since John G. Roberts Jr. replaced Chief Justice William Rehnquist], the court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.”
The report offers interesting reflections from Justice John Paul Stevens as well as Justice Sandra Day O’Connor on changes they have seen in the court. It also highlights the political reality that all the recent replacements have been a zero-sum game except for Justice Samuel Alito’s replacement of O’Connor. O’Connor was a Westerner who had served in a variety of representative capacities before taking the bench, as opposed to the Easterners who have primarily ascended to the bench from the ranks of the judiciary in recent years.
The report undercuts itself a bit, boldly anchoring its Sunday front page with the pronouncement on the conservatism of the Roberts’ court, while noting well inside that, “the rightward shift is modest.”
The bigger problem, however, is the Times’ reliance on a bi-modal analytic model – assigning a value of either ‘conservative’ or ‘liberal’ to Supreme Court decisions and votes of individual justices.
The piece relies on a database created by Harold J. Spaeth with the support of the National Science Foundation. A link to the Judicial Research Initiative at the University of South Carolina is here.
The database assigns a value of “liberal” to votes favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights. It assigns a value of “conservative” to decisions striking down economic regulations and favoring prosecutors, employers and the government. The approach may shed some dim light, but seems particularly out of step with justices capable of tremendous nuance, who bear little resemblance to their “liberal” or “conservative” forbears. No moment is given to the selection of the docket, or its shifting nature, including the plentiful business cases that now populate it, among many other issues.
Few would dispute that Justice Roberts is conservative, however, the texture of that conservatism is no more apparent after reading the Times.
So with the power of the NY Times, and the nation's best computer modeling on the Supreme Court, what have we learned?
That when the Republicans control the White House and Supreme Court appointments, the court becomes more conservative, and, presumably, when Democrats do, it becomes less so. We officially learned that the Supreme Court under Chief Justice Roberts is conservative (for those who hadn't noticed), but we also learned that a simplistic analysis of whether an opinion or decision is “conservative” or “liberal” is reductionist and possibly a disservice to the Supreme Court and its justices.
For a take with more breadth, it’s worth the time to read Akin Gump’s estimable Tom Goldstein, who used a rather finer trowel in his own analysis a month back.
Among his conclusions, “[I]t is inaccurate to describe the Court as methodically on the march to the right.” And, “[M]y point is that the broad brush with which the Court is frequently characterized tends to obscure rather than illuminate. It is a far more complicated institution.”
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| 04:37 PM Jul 26, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
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