Studies: Roberts Court Most Conservative In Over Seventy Years

roberts and bushThe New York Times reports on a pair of studies, one of which studies Supreme Court voting paterns since 1937, which find that the Roberts Court is the most conservative Supreme Court in recent history:

Four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Antonin Scalia and, most conservative of all, Clarence Thomas. (The other two were Chief Justices Burger and Rehnquist.) Justice Anthony M. Kennedy, the swing justice on the current court, is in the top 10.

The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts. But the ideological direction of the court’s activism has undergone a marked change toward conservative results. . . .

It is the ideological direction of the decisions that has changed. When the Rehnquist court struck down laws, it reached a liberal result more than 70 percent of the time. The Roberts court has tilted strongly in the opposite direction, reaching a conservative result 60 percent of the time.

The Rehnquist court overruled 45 precedents over 19 years. Sixty percent of those decisions reached a conservative result. The Roberts court overruled eight precedents in its first five years, a slightly lower annual rate. All but one reached a conservative result.

If anything, this data understates the Roberts Court’s rightward drift.  Because the Supreme Court largely gets to choose which cases it wants to hear, a conservative Court will not simply move the law to the right by handing down conservative opinions, it will also do so by hand-selecting cases that achieve conservative results.  In 2008-09 term, for example, the Supreme Court handed down five decisions cutting back environmental law.  Such an event could not have occurred without the justices taking the unusual step of agreeing to hear five environmental cases in a single term.

Moreover, even though American now suffers under the most right-wing Supreme Court in seven decades, right-wing lawmakers are demanding a Court that is even more extreme.  Conservatives repeatedly attacked Supreme Court nominee Elena Kagan for taking positions on health reform and the Second Amendment that are also embraced by ultraconservative Justice Antonin Scalia.  And some senators even embraced a discredited “tenther” view of the Constitution that would declare child labor laws, the federal ban on whites only lunch counters and potentially even Social Security unconstitutional.

It remains to be seen how far the Roberts Court will go in embracing this deeply radical agenda.  John Roberts has only been Chief for five years — and he could have many decades left to replace hard-fought laws with his own right-wing values.