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Talking Points: The Court Lurches Right

Roberts' fractious Court has produced a higher share of 5-4 decisions than any term in the last decade.

Yesterday’s 5-4 decision by the Supreme Court in a landmark racial desegregation case, which instructed local authorities “that they cannot take modest steps to bring public school students of different races together,” marked a fitting conclusion to the first full term of President Bush’s two Supreme Court appointees, Chief Justice John Roberts and Justice Samuel Alito. Reading his dissent from yesterday’s decision aloud in the courtroom, Justice Stephen Breyer aptly described the Court’s sharp rightward slide. “It is not often in the law that so few have so quickly changed so much,” he said. The majority opinion, authored by Roberts, served as a microcosm for the traits that have quickly come to define the Court: an alarming lack of respect for precedent, irreverence for the democratic process, and disregard for constitutional history. Early in his first term, Roberts publicly proclaimed his desire to seek greater consensus, but his “fractious” Court has produced a “higher share of 5-4 decisions than any term in the last decade.” He has forced Justice Ruth Bader Ginsberg to undertake rare readings of “powerful dissents from the bench,” a sign of the concern that marks the new divisive era on the Court.

  • The Roberts court has shifted dramatically to the right in the first full term of Bush’s appointees. The newly-emboldened conservative wing of the Court has chosen cases on appeal through which it could implement its agenda. When Justice Sandra Day O’Connor was still on the Court, the justices denied review to a racial desegregation school program in Massachusetts. But in June of last year, “the court, reconfigured by the additions of Roberts and Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear” the school desegregation appeals, even though there was no disagreement in the lower courts on the validity of such programs. Slowly, legal and political scholars are taking notice of the Court’s new activism. Norm Ornstein of the American Enterprise Institute said the Supreme Court’s decision this week in a campaign finance reform case demonstrated “not a careful, conservative deference to Congress” but instead “a willingness by Roberts to toss aside Congress’ conclusions to fit his own ideological predispositions.”
  • Roberts and Alito have broken their pledges not to impose their own priorities and beliefs on the Court. When Bush nominated Roberts and Alito, he argued they deserved bipartisan support because they would “interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans,” and they would not “impose their preferences or priorities on the people.” Roberts went before Congress and testified that he had “no agenda.” He added, “Saying a judge is result-oriented…[is] about the worst thing you can say, because what you’re saying is you don’t apply the law.”  For his part, Alito said he believed “the judiciary has to [interpret broad principles of the Constitution] in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution.” (Read more of their false promises here.) Duke University law professor Erwin Chemerinsky writes today that “the testimony given by John Roberts and Samuel Alito at their confirmation hearings just months earlier was a lot of baloney.” The most devastating change on the Court has been the ideological shift that came with Alito’s replacement of O’Connor. “That switch almost certainly changed the outcome of many of this year’s most important decisions, with the following results: making it much more difficult for women, minorities, and older workers to challenge employment discrimination (Ledbetter); limiting Congress’s power to keep corporate money out of federal campaigns (Wisconsin Right to Life); cutting back on protections for reproductive freedom (Carhart); slamming the courthouse door on people who make technical mistakes (Bowles); cutting back on protections for people facing capital punishment by, among other things, allowing imposition of the death penalty on defendants deprived of even minimally adequate representation (Landrigan, Ayers, Uttecht); and making it impossible to challenge the Bush administration when it uses public funds to promote favored religions (Hein).”
  • The decisions handed down this week point to a court that could veer even further right if another space opened up during the Bush administration. As much as the Court has lurched to the right in the past two terms, the results could get worse if another Court opening were to occur during Bush’s remaining days in office. The oldest justices are John Paul Stevens and Ginsburg, members of the progressive bloc. Among the issues at stake in the future are: a woman’s right to choose; the environment; voting rights; congressional power; free speech and the First Amendment; and the protection of fundamental rights and liberties. O’Connor was a key vote on many of these issues, and the new Court could soon have these protections in its crosshairs. Washington Post columnist E.J. Dionne writes, “If another conservative replaces a member of the Court’s moderate-to-liberal bloc, the country will be set on a conservative course for the next decade or more, locking in today’s politics at the very moment when the electorate is running out of patience with the right.”