At the Supreme Court, the right-wingers are always up to no good, and almost always in charge. Or so it seems to the sizable slice of the journalistic-academic-cosmopolitan world typified by The New York Times’ editorial page.
A new wrinkle in this summer’s assessments is that the conservative cabal appears to have co-opted liberal Justices Stephen Breyer, David Souter, and John Paul Stevens. Beyond that, even Barack Obama, who has one of the most liberal voting records in the Senate, was somehow seduced into siding with conservative Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts in two big cases.
To explain, let’s examine a July 3 Times editorial, “A Supreme Court on the Brink.” It began by lamenting “highly conservative rulings on subjects like voting rights and gun control”; the former showed that the Court had “abandoned its special role in protecting voting rights when it rejected a challenge to Indiana’s harshly anti-democratic voter-ID law,” and the latter will add to gun violence by recognizing a right to keep guns for self-defense at home. The editorial went on to decry the “cold-hearted decision” allowing Kentucky to use a particular lethal injection method to execute capital murderers and the decision reducing to a $500 million “pittance” the $2.5 billion punitive damages award against ExxonMobil for the 1989 Exxon Valdez oil spill. The main bright spots, the editorial noted, were the Court’s “third rebuke to the Bush administration on Guantanamo” and the decision striking down the six state laws that made the most vicious rapists of children eligible for the death penalty.
But guess who wrote the “highly conservative” voting-rights decision? Justice Stevens, often called the leader of the Court’s liberal bloc. And guess who voted with the majority in the “coldhearted” lethal injection decision? Stevens again, and Breyer too. (Stevens also said he had come to see the death penalty itself as unconstitutional but felt bound by the Court’s precedents.) And guess who wrote the Exxon decision? Souter. And who applauded the gun-rights decision? Obama (as well as John McCain). And who assailed the Court’s ban on executing child rapists? Obama (and McCain) again.
A levelheaded liberal might infer from the votes of Stevens, Breyer, and Souter that the voter-ID, lethal injection, and Exxon decisions were probably pretty reasonable. And so they were. Stevens’s voter-ID opinion rested on the absence of evidence that the law had denied anyone or would deny many people the right to vote. The lethal-injection decision rested on the absence of evidence that Kentucky’s protocol was likely to inflict any pain. Souter’s Exxon opinion rested on a well-reasoned judgment that a 1-1 ratio of punitive damages to the $500 million that Exxon had already paid in compensatory damages (on top of $3.3 billion in cleanup efforts, fines, and settlements) was a reasonable cap to control “the stark unpredictability of punitive awards.”
As for the decision that made it easier for Guantanamo detainees to seek judicial review, Obama joined The Times in applauding (as did I, with reservations). But the American public did not: According to an ABC News/Washington Post poll, respondents disapproved of the decision, 61 percent to 34 percent.
This brings me to the Times editorial’s warning that “the Court is just one justice away from solidifying a far-right majority that would do great damage to the Constitution and the rights of ordinary Americans.” Far-right? That may be a defensible (if unduly pejorative) description of Thomas. But Roberts and Alito are “far-right” and “radical” (as Times columnist Frank Rich has called them) only to people who are themselves more than a little bit to the left on the public opinion spectrum.
This helps explain why Obama found it expedient to applaud the gun-rights decision and denounce the child-rape ruling. A February 2008 Gallup Poll showed respondents favoring, 73 percent to 20 percent, an individual right to own guns. I have found no polls on the child-rape issue. But Obama seems astute at courting centrist voters. (Indeed, the two presidential candidates’ finger-to-the-wind assessments add to the doubts expressed by Alito’s dissent about the majority’s assertion that there was a “national consensus” that the death penalty should be off-limits for rapists of children.)
It is misleading to brand as “far-right” and “radical” positions that are more liberal than, or near the center of, mainstream public opinion.
While The Times and others trash the center-right Roberts and Alito as far-right, my friend E.J. Dionne worries in a New Republic piece—titled “Where the Wild Reactionaries Are”—that conservative justices may use “a narrow, 19th-century definition of property rights to void progressive economic, environmental, and labor regulation.” Don’t hold your breath: I count only one vote (Thomas) for such a radical agenda.
Dionne also complains that “the four conservatives … have already shown their willingness to overturn the will of Congress and local legislatures when doing so fits their political philosophy.” Of course, Dionne is delighted when the four liberals (plus swing-voting Anthony Kennedy) overturn the will of Congress and local legislatures, as they did in the Guantanamo and child-rape cases.
To locate the Court’s current doctrines on the spectrum of public opinion, consider six of the most contentious subjects that come before the justices on a recurring basis: abortion; race; religion; the death penalty; gay rights; and presidential war powers. On every one of them, the Court’s precedents are to the left of, or very close to, the center. (To be sure, this began changing in 2006, when Alito replaced the more liberal Sandra Day O’Connor.)
On abortion, Gallup and other polls have shown for many years that although the public does not want Roe v. Wade overruled, large majorities support both the modest restrictions on abortion that the Court has upheld, such as the congressional ban on “partial-birth” abortion, and some other restrictions that the justices have struck down, such as banning abortions in the second and third trimesters.
This helps explain why Obama recently abandoned his advocacy of virtually unlimited abortion rights by endorsing a ban on abortions of viable fetuses (after 22 weeks) unless they are justified by a “serious physical issue” or “serious clinical mental diseases”; “feeling blue” would not be justification enough. Obama thus contradicted a major, 35-year-old Supreme Court ruling that any degree of mental or emotional distress would qualify.
On racial affirmative action, decades of polls and ballot initiatives show that when asked specifically about the kinds of preferences the justices upheld in a 2003 decision on admissions to the University of Michigan Law School, the public has turned thumbs-down, often by lopsided margins. In a June 2007 Gallup Poll, for example, 70 percent said that colleges should admit students based solely on merit and only 23 percent said that racial or ethnic background should be considered to promote diversity.
On religion, polls consistently show majority public approval of types of school prayer (nondenominational, nonparticipatory prayer at graduation ceremonies, for example) that the Court has outlawed and public acknowledgments of religion (such as “under God” in the Pledge of Allegiance) that seem hard to square with the Court’s precedents.
On the death penalty, an October 2007 Gallup Poll showed public support, 69 percent to 27 percent, of “the death penalty for a person convicted of murder,” and a May 2004 Gallup Poll showed a majority agreeing, 75 percent to 21 percent, that “states should be allowed to execute prisoners sentenced to the death penalty by means of lethal injection.”
On gay rights, Gallup’s analysis is that the justices sparked a backlash by racing ahead of public opinion in a 2003 decision that recognized a constitutional right to have gay sex and helped spur the highest court in Massachusetts to strike down the ban on gay marriage. “The public became broadly more liberal regarding homosexual behavior and the legality of homosexuality between 1992 and 2003,” according to Gallup, “but that pattern reversed itself in the summer of 2003 in reaction to a highly visible Supreme Court decision, and has since leveled out with a slight plurality saying that homosexual relations should be legal.”
On presidential war powers, see the above-cited public disapproval of the Court’s rejection of Bush’s view that the Guantanamo detainees have no constitutional rights.
The point here is not that the public is always right; indeed, I agree with some of the Court’s more unpopular decisions. The point is that it’s misleading to brand as “far-right” and “radical” positions that in fact are more liberal than, or near the center of, mainstream public opinion.
On the other hand, in a September 2007 Gallup Poll more respondents saw the Court as “too conservative” than as “too liberal,” by 32 percent to 21 percent, with 43 percent calling it “just about right.” At first blush, this seems contrary to the issue-specific polls. The explanation may be that media portrayals have convinced the public that the Court is more conservative than it really is.
This article appears in the July 12, 2008, edition of National Journal.