The Court’s Right Shift

Via Ezra Klein, a good Cass Sunstein article describing the rightward march of the Supreme Court over the past 30 years. The whole thing is worth reading, but this really sums it up:

Here is another way to demonstrate the point. In 1980 Stevens often operated as the Court’s median member; in many cases he (along with Powell) was the Justice Kennedy of that era. But Stevens is frequently described as the most liberal member of the current Court. If he qualifies for that position, it is not because of any significant change in his own approach, but because of a massive shift in the Court’s center of gravity. [. . .] A widely unknown fact: Between 1984 and 2000, the Court overruled more than 40 precedents, specifically rejecting the law as it was understood in 1980. And on many more occasions, the Court significantly reoriented the law without overruling particular decisions.

In the popular imagination, a “liberal” justice is one who, like Stevens or Breyer, thinks women have a right to abortion and generally believe congress should have leeway in deciding how it wants to regulate interstate commerce. But to legal scholars, the real judicial left is represented by the ghosts of Thurgood Marshall and William Brennan who saw the constitutional values of equality as imposing affirmative mandates on the state to provide services to poor people. Bill Clinton showed no particular interest in trying to revive that style of legal thinking in the judiciary, and nothing in Sonia Sotomayor’s record indicates that she does either.