Civil Liberties, Columnists, Constitutional Law, Featured, Politics, Rob Natelson

Natelson: No, we do not have a ‘conservative’ Supreme Court

The Supreme Court term just over certainly confirmed what I wrote shortly after it started: The constant refrain that the current bench is a “conservative Supreme Court” with a “conservative majority” is flat wrong.

The New York Times has been a major offender in mischaracterizing the court as “conservative.” But now the evidence is so decisive that even the Times is admitting the truth.

When politicians and the media refer to a “conservative judge,” they know, or should know, how most people understand the phrase: He or she produces politically conservative results — favoring religious and other traditional values, individual freedom including property rights, state power over federal power, and a strong national defense (including border enforcement). By contrast, people think of a “liberal judge” as one who reaches politically liberal results: social liberalism, government control of the economy, federal over state power, and leniency toward liberal voting groups.

U.S. Supreme Court building

If we adopt these definitions, then for every major “conservative” victory this term, you can cite a “liberal” one. Moreover, some of the “conservative” victories were pretty limited.

Consider some paired cases. The court granted conservatives a victory in American Legion v. American Humanist Ass’n by allowing a large Christian cross to remain on public ground. But the victory was limited because the court refused to overturn the Lemon test, against which conservatives have inveighed for many years. The court also refused Justice Clarence Thomas’s invitation to withdraw from establishment-of-religion cases involving state and local governments.

Moreover, the partial conservative victory in American Legion was offset by Dept. of Commerce v. New York, which ensured that a citizenship question will not be on the 2020 census.

Political conservatives may like Knick v. Township of Scott, which made it easier to get compensation when state or local government takes your property. But their appreciation should be reduced by the fact that the new holding will require more federal judicial intervention in state affairs. Additionally, the qualified victory in Knick is offset by Kisor v. Wilkie, where the court ruled that judges should interpret an ambiguous federal regulation in favor of its sponsoring agency. (This holding inverts the usual legal principle that an ambiguity is construed against the party causing it.)

Conservatives may rejoice that the justices agreed to review the Montana Supreme Court’s anti-school choice decision in Espinoza v. Montana. But they must regret that the justices shied away from taking on Planned Parenthood.

There were also important liberal victories unmatched by conservative counterparts. The court still adheres to the anti-constitutional position that as long as Congress doesn’t interfere with state government operations, its power is almost unlimited. Over Thomas’s objection, several justices said as much in Murphy v. NCAA, a case that, when viewed only superficially, looked like a victory for states’ rights. In several other decisions, the court interpreted federal economic and criminal laws quite broadly.

In controversies involving Indian tribes, conservative political figures usually honor the prerogatives of states over those of the tribes. But in both cases involving Indian treaties, the tribes won.

Conservatives who think the feds shouldn’t be subsidizing smut may be jarred by the 7-2 decision in Iancu v. Brunetti. It voided a law against indecent trademarks. Conservatives may be perplexed to learn that the only justices who stood up for traditional standards were Sonya Sotomayor and Stephen Breyer.

Conservatives who favor applying the Constitution’s original meaning should be disappointed by the court’s stubborn adherence to the absurd doctrine of “substantive due process.”

Of course, these conservative/liberal characterizations are highly simplistic. And that’s exactly the point! It is inaccurate to identify as “conservative” five justices who aren’t trying to achieve conservative results. For the most part they are just trying to be honest judges — as they should. But when doing so they often produce liberal results.

The common description of Breyer, Sotomayor, Ruth Bader Ginsburg, and Elena Kagan as a “liberal bloc” is a closer to the mark.  But even among those four there are important differences, particularly between Breyer/Kagan and Ginsburg/Sotomayor.

Over the past 50 years, Republican presidential candidates have promised to nominate justices who are conservatives, who are strict constructionists, or who are originalists. (Those terms do not mean the same thing.)

Based on those promises, Republicans have often won the presidency, and they have appointed 19 justices, while Democrats have appointed only eight. Yet not one of the Republican goals has been met: Today a majority of the justices are neither conservatives, nor strict constructionists, nor originalists.

In fact, in the context of the court’s full history, the balance of power on today’s bench leans more left than right.

Rob Natelson served as a law professor for 25 years, and is nationally known as a constitutional scholar. He is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver, and author of The Original Constitution: What It Actually Said and Meant (3rd ed. 2014).  A version of this article first appeared in The Daily Caller.

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