The Supreme Court's Move the Right

Jan Crawford Greenburg talks about the Supreme Court's most recent turn and how both sides of the ideological aisle are not being honest about their position on the events of the term. For the conservatives, who have been earnestly pointing out that the Court didn't really move all that far to the right. While technically true, the groundwork for a more rightward shift has been laid:

Let’s be clear here: There’s no question that the Court ended its term pointed in a more conservative direction with the addition of Justice Alito for O’Connor. Putting aside the overheated talk on the Left for a minute, it’s been outright baffling to listen to some conservatives try to argue the Court didn’t do all that much. Justice Scalia didn’t leave town depressed (like in years past) by end-of-term rulings, so why are conservatives downplaying what were significant rulings for them?

Sure, the Court didn’t overturn Roe—but it upheld the first-ever ban on a specific abortion procedure and indicated a clear willingness to allow other regulations and restrictions down the line. Sure, it didn’t overturn McCain-Feingold, but it limited its scope with a decision that is certain to lead to more attacks down the road. And, no, the Court didn’t get five votes for a color-blind Constitution, but it so dramatically limited when schools can consider a student’s race for diversity purposes that most school officials—notoriously litigation adverse—are going to scrap those programs.

Just say it: The Court turned to the Right. Some of those changes were modest—and not equal to the landmark rulings they were narrowing—but a turn nonetheless. And it was a turn conservatives had hoped for when Roberts and Alito took their seats.

I admit, the Court moved right and probably more dramatically than other conservatives would admit. I don't disagree with any of the cases Greenburg cites, although some of the reasoning in the opinions is shaky at best.

But Greenburg is completely baffled by the Left's reaction. You would think that the end of the world will occur with the opening of the Court's next term in October.

As strange as some of the conservative reaction may be, though, it’s the outrage on the Left that’s most striking. And that’s what makes Sullivan’s contribution particularly important.

The latest liberal “sky is falling” alert came in the Charlotte Observer, when law professor Joseph Thai—presumably a smart man who went to Harvard and Harvard Law, clerked on the Supreme Court for Justices Stevens and White and is beloved by students—penned an editorial that casts him in the role of Chicken Little.

Now lots of people read the Charlotte Observer, and many think that law professors have some kind of special insight into what the Court does. They might actually take Thai at his word—even though his words mischaracterize what the Court did and distort the debate over where it is headed.

Thai flatly declares that “in one questionable decision after another,” the Court this term “made it dramatically more difficult, if not impossible, for ordinary Americans to have their day in court.”

Difficult, if not impossible, for ordinary Americans to have their day in court? With apologies to Justice Scalia, this assertion cannot be taken seriously.

And maybe I wouldn’t if Thai were the only one talking in a tabloid-style, Jerry Springer-esque tone. But other law professors also are shouting into the microphones, including the former dean of my great law school, Geoffrey Stone. I listened incredulously during a panel discussion I had recently with Stone—an obviously smart and engaging man who has made some important contributions in his day—as he repeatedly slammed the new Roberts Court for caring only about rich people, white people and corporations.

It’s like legitimate debate about law in the academy has been replaced with a wrestling smack-down. Next thing you know, law professors will be breaking fake chairs over each other’s heads.

The direction of the Court has routinely swayed back and forth a little, the move rightward really begain in the last 1970's with the Berger Court, but considering the legacy of the Warren Court, a move rightward was almost inevitable.

In many ways, the Court is a slow motion reflection of the national outlook. The Court moves, if not at a glacial pace, then at a slower pace than the rest of America. The Court's move rightward is a reflection of the nation's move rightward over the past 25 or so years. Electoral politics of the last two to three decades has been steadily rightward. The tough thing that the nation is facing is that national electoral politics may be looking at a move to the left, a common enough occurance, but the Court does not shift on a dime and assuming a left-leaning ascension in electoral politics, the Court will take 15 or 20 years to join that movement, assuming a liberal charge continues.

Doom and gloom regularly fill newspaper editorial pages, but the sky has never fallen on the Court before, even with such dark legal days as Dred Scot or Plessy v. Ferguson--now those would have been times when such morbid rhetoric would have been appropriate.