David Savage of the L.A. Times is such a drama queen.
In what may signal a generational shift in power, new Chief Justice John G. Roberts Jr. led a confident conservative majority at the Supreme Court this year and moved the law to the right on abortion, religion, campaign funding and racial diversity.
Working with a 5-4 majority, Roberts prevailed in nearly all the major cases.
My goodness! That sounds alarming! (Or heartening, if you’re a judicial conservative.)
But on closer analysis, the accuracy of Savage’s clarion call is questionable. I guess it depends on what the meaning of the word “major” is.
According to Savage, the category of “major” cases includes a dispute over whether some schoolkid can sue his principal for taking a banner reading “Bong Hits 4 Jesus.” But conservative losses in several death penalty cases — including some with the potential to undercut Congressional limitations on habeas petitions — don’t make the cut.
A memo at SCOTUSblog (.pdf file) presents the facts in a more dispassionate manner:
Nineteen of the 5-4 cases broke down along ideological lines and, as in most every recent Term, the Court’s five more conservative members won a greater share of 5-4 victories than the four more liberal justices. The Roberts-Scalia-Kennedy-Thomas-Alito combination prevailed in 13 of 24 (or 54%) 5-4 decisions, while the Stevens-Souter-Ginsburg-Breyer [liberal] grouping prevailed in only six of 24 (25%) decisions.
In other words, liberals won in nearly 1/3 of all ideologically divided cases.
This passage by Savage illustrates his tendency to elevate melodrama over accuracy:
The final week of the term showed Roberts in full control.
On Thursday, he spoke firmly in the courtroom as he demanded an end to racial integration policies that call for “assigning students on a racial basis.” He invoked the famous 1954 Brown vs. Board of Education ruling, saying it established the principle that children must not be turned away “based on the color of their skin.”
But these quotes were all from Section IV of the opinion — a section joined by only three other Justices. This is the second day in a row that Savage has seemingly failed to understand that four Justices do not constitute a majority. It’s hard to see how Roberts could be in such “full control” while reading from an opinion that he couldn’t get a majority of Justices to sign. I don’t care how “firmly” Roberts spoke in the courtroom — Kennedy’s refusal to sign that portion of the opinion speaks louder.
Like I said: Savage is a drama queen.
The fact is that, while conservatives won a lot of decisions, they won them on narrow grounds. Just to take a few examples:
- Conservatives won the partial-birth abortion decision — but they had to sign onto a Kennedy opinion that explicitly relied on the Roe and Casey precedents. Granted, Justice Thomas wrote a concurring opinion that explicitly rejected those cases. But in a potentially disturbing harbinger of the future, Justices Alito and Roberts refused to join Justice Thomas’s concurrence.
- Conservatives won the campaign finance decision, and thank God they did. But the famous minimalism of Justices Alito and Roberts cost conservative defenders of free speech — big-time, as VP Cheney might say. As Pat at Stubborn Facts has observed: “Had the Chief and Justice Alito voted with Scalia and the others, we had the votes to overturn McConnell and get the government out of the business of censoring political speech before elections.”
- Conservatives won the forced integration cases — but the decisions are far less sweeping and far more nuanced than they are being portrayed in the media. Even Chief Justice Roberts’s opinion for the plurality accepts the Grutter precedent, and doesn’t rule out the concept of using race as a factor in achieving diversity. Justice Kennedy’s opinion explicitly leaves race-conscious measures open as a possibility. The ultimate result stands not for colorblindness so much as a rejection of any measures that Justice Kennedy considers “crude” (a word that pops up again and again in his opinion).
- Conservatives won the faith-based initiative case on standing grounds — but passed on a chance to overrule a Warren Court precedent creating an exception to the general rules on standing for Establishment Clause cases. This prompted Justice Scalia (joined by Justice Thomas) to bitterly observe: “Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future.”
So in all four of the areas mentioned by Savage in his lede — abortion, religion, campaign funding and racial diversity — conservative victories were limited when they could have been sweeping; modest when they could have been bold. In marked contrast to the claims of the disingenuous Erwin Chemerinsky, Justices Alito and Roberts have been exactly what they promised they would be — restrained minimalists.
And in every ideologically divided case of the term, Justice Kennedy cast the deciding vote.
That, and not a new conservative hegemony, is the real story of this Term. And, while it could be worse, it’s not a particularly heartening story. I’m with Ed Whelan, who responds to Savage’s fellow drama queen Linda Greenhouse as follows:
In tomorrow’s New York Times, Linda Greenhouse’s summary of the Court’s term begins: “It was the Supreme Court that conservatives had long yearned for and that liberals feared.” Well, I’ve certainly never yearned for—and no conservative should yearn for—a Supreme Court in which Justice Kennedy provides the decisive vote.
Amen to that.