Next week, I will participate in the Federalist Society’s National Lawyers Convention, in Washington, D.C., on a lunchtime panel sponsored by the Litigation Practice Group, the theme of which is “Ten Years of the Roberts Court.” (The event runs from Noon until 2:00 P.M., at the Mayflower Hotel in Washington. The other panelists are Michael Carvin, Jan Crawford, and Steven Duffield. The moderator is Ninth Circuit Judge Carlos Bea.)
The title I’m giving my brief remarks is the same as the title for this blog post: What’s “Conservative” about the Roberts Court? It is customary to refer to epochs, or periods, of the Supreme Court in terms of the tenure of a particular Chief Justice. The appointment of John Roberts as Chief Justice, ten years ago this fall, thus serves as a conventional marker for evaluating the performance and direction of the Court under his leadership.
But of course the marker is to some degree arbitrary: John Roberts is just one vote on the Court (though he has been influential in important respects) and his appointment was hardly a transformative one, ideologically. To the extent shorthand labels are at all useful, John Roberts is (in the main) a traditional, “mainstream” judicial “conservative.” He sticks close to the text of the Constitution or statute (most of the time), eschews policy-driven legal interpretation (most of the time), is reluctant to launch out in striking new directions or to invent new powers or rights (most of the time), tends to defer to democratic policy choices of the political branches of state and local governments (most of the time), and respects prior judicial precedent (arguably too much of the time—he is an incrementalist who sometimes seems too content to work within paradigms, and precedents, that are simply inconsistent with the Constitution). In this respect he is not terribly different from the Chief Justice he succeeded (and for whom he served as a law clerk): William H. Rehnquist.
The substitution of Roberts for Rehnquist is the substitution of one deferential, non-activist judicial conservative for another. It is not surprising, then, that the appointment of Roberts did not launch the Court in an entirely new direction. It simply did not greatly alter the ideological makeup of the Court.
Within the past ten years, there have been three other substitutions in the Court’s personnel. Probably the one of these three with the greatest impact on the Court’s overall direction (albeit still an incremental one) is the appointment of Justice Samuel Alito to replace the retiring Justice Sandra Day O’Connor. Alito is a strong, principled, consistent judicial conservative, with a reasonably clear judicial interpretive methodology prioritizing constitutional and statutory text, structure, history, and (again, like Roberts, perhaps too much so) precedent, and roughly in that order. O’Connor had generally conservative instincts, but was less consistent and principled, had a far less clear and not at all coherent judicial philosophy, and would occasionally blow with the social and political policy winds. O’Connor, less anchored, could thus be pushed around more easily, and her votes and opinions reflected those tendencies. She was known as more of a “swing” justice. (I prefer the epithet “weathervane” justice – a label that I think better captures the reality.)
The substitution of Alito for O’Connor has thus made for some differences in outcomes in important cases, in a generally “conservative,” original-constitutional-meaning direction. In fairness, one could say that Roberts-Alito for Rehnquist-O’Connor should be considered as a package, sort of like a “double switch” in baseball: Roberts was initially named by President George W. Bush to replace the retiring O’Connor, then quickly elevated as Rehnquist’s replacement when the Chief died shortly thereafter. Alito then took the O’Connor seat, several months later (in 2006), after a memorable episode of controversy over President Bush’s initial naming of Harriet Miers. (In October 2005, the Miers nomination was all that anyone could talk about for a few weeks. I recall Alito’s nomination making for a Happy Halloween that year.)
President Barack Obama appointed hard-left liberal Sonia Sotomayor to replace moderate-liberal David Souter in 2009, tilting the Court somewhat more to the left. But by this time, Souter (a President George H.W. Bush appointee) had already drifted far enough left to become a fairly reliable member of the Court’s activist policy wing. He was just slower to get there. President Obama appointed the smart lefty Elena Kagan to replace the cranky lefty John Paul Stevens, in 2010. Again, this did not greatly shift the Court’s ideological balance. Kagan is smarter and more principled, which actually improves the quality of the Court’s discourse. Though a consistent liberal, she lacks the abrasive hostility toward religion, toward freedom of speech, and toward national security that so characterized the truly awful Stevens, an appointee of President Gerald Ford. It is not too terribly unfair to say that Stevens was Against God (he always voted against religious freedom, and would sometimes vote to invalidate laws simply because they were backed by religious persons and groups), Against Country (or at least the constitutional powers of a Commander in Chief in time of war), Against Life (a vigorous backer of Roe v. Wade, and of a right to die) and Against Liberty (writing one of the most pernicious anti-free speech opinions in the Court’s history—which is saying something—in Hill v. Colorado. Kagan is a smart arch-liberal; Stevens had degenerated into a reprehensible, result-driven, anti-constitutional hack. The switch from Stevens to Kagan was an improvement in quality, but not a marked ideological change.
So the net change on the Court? A conservative Chief replaced a conservative Chief. Two liberals have replaced two liberals. And Alito, a solid conservative, replaced O’Connor, a liquid conservative (and occasionally a gaseous one). The liberal bloc of four remained the liberal bloc of four. The conservative group of three gained a fourth. And the “swing” group of two—O’Connor and Justice Anthony Kennedy—who sometimes voted with the conservatives to form a narrow majority of five, and sometimes voted (one or both of them) with the liberals, became a Lone Swinger of One: Justice Kennedy.
The “Roberts Court,” then, has been more conservative than the Rehnquist Court only when Alito’s vote has been different from what O’Connor’s would have been, and where Kennedy was already with the conservatives in the first place on that particular issue.
Those situations have been—as I will discuss at the Federalist Society convention next week—“Few” and “Far Between.”
There have been a few important conservative victories that otherwise might not have occurred—the Citizens United and Hobby Lobby cases stand out. There have been a few incremental improvements and baby steps, on abortion, racial preferences, and free speech. There have been a few important “sleeper” victories (like the Utility Air decision in 2014). And there has even been one silver-lining partial-victory-even-in-defeat for constitutional federalism (NFIB v. Sebelius).
But for the most part such changes in the conservative direction have been interspersed far between dramatic liberal victories (and disastrous defeats for the Constitution), in which Kennedy proved the crucial fifth vote: Hamdan v. Rumsfeld (2005), Boumediene v. Bush (2008), Christian Legal Society v. Martinez (2010), United States v. Windsor (2013), and Obergefell v. Hodges (2015). In these cases, Roberts and Alito made no difference. It remains, in reality, not a “Roberts Court.” It is the Kennedy Court.
In my panel presentation in Washington next Thursday, I hope to offer some concluding thoughts about future appointments to the Court—“Lessons for the Next Conservative President”—including a defense of the perfect constitutional propriety of ideological “litmus tests” for prospective judicial nominees and some suggestions for what the proper ideological test(s) should be.
Michael S. Paulsen is University Chair & Professor of Law at the University of St. Thomas. He is the author of The Constitution: an Introduction, reviewed by Supreme Court Justice Samuel Alito.