Translate

02 July 2012

SCOTUS Compare-Contrast

Note: This post was actually started two years ago as a follow-up to my Brief History of the Supreme Court, and I have finally finished it.
This is my first non-music post in a while.
-----------------------------------------------
DISCLAIMER: My following explanation of the Post-Nixon Court is mostly based on fact and observation, and I have tried to be as objective as possible; nevertheless, there may be some opinion-based thoughts expressed here. This is also not meant to be exhaustive.
-----------------------------------------------
Despite the few liberal precedents of the Nixon era, SCOTUS became markedly more conservative during this period, and with the election of Reagan as president, the Court hit a point from which it could never easily turn back: the rise of the Ultra-Conservative faction of the Court, as well as the retirements/deaths of the remaining "Strong" liberals, who were replaced by moderate liberals, and the rise of moderate Justice Stevens as the foremost liberal on the Court.
* This is illustrated by the failed nomination of Robert Bork, followed by the successful appointment of Scalia, Thomas, Alito, and Roberts.
* Of course, both Reagan and Bush Sr. had relative disappointments as had Nixon, with the appointment of, respectively, two moderate-right conservatives (O'Connor and Kennedy [both Reagan appointees]) and one moderate-left liberal (Souter [Bush appointee].

What I mean by all of this is simple:
If one were to compare the Supreme Court of today to, for example, the Warren Court (I chose that one mainly because I am most familiar with it, and because it serves as a strong contrast), we would see some striking differences, even in how we define the factions.
* The Warren Court, despite its relative liberality, had a relatively conservative wing as has every Court. The Justices most strongly aligned with the Conservative wing of the Warren Court were Potter Stewart, John Marshall Harlan II, and Felix Frankfurter.
The Warren Court's makeup from 1958-1962
* But, when one compares these conservatives with the current SCOTUS' conservatives (Roberts, Alito, Thomas, Scalia), one finds that they are on entirely different wavelengths. Despite the Warren-Era conservatives' attempts to prevent some of the Warren Court's excesses, the conservative justices of the time still joined in many of the liberal decisions.
* For example, Justice Harlan, often considered a strong conservative, nevertheless was the main proponent of the Right of Privacy established in Griswald and which led to the decision in Roe v. Wade. The idea of the current conservatives taking any part in such a decision is hard to even imagine. Perhaps the only analogue on the Court is Justice Kennedy, who helped to preserve Roe v. Wade and even authored the decision in Lawrence v. Texas (2003), which established a freedom of sexual activity within the Right of Privacy. Nevertheless, Kennedy (the most moderate conservative) is arguably more conservative than the strongest Warren conservatives, as his vote in such cases as Citizen's United and the recent "Obamacare" case illustrate.
* Justice Hugo Black (who may be the greatest justice to ever sit on the Court in my estimation) and Justice William Douglas were both First Amendment Absolutists and, especially in the case of Black, were Strict Constructionists. Yet, they were the last of their breed of Strict Constructionists who reached quite liberal decisions while also reaching rather conservative ones at times. Now, the Court can (generally) be lumped into the Constructionists/Originalists (not necessarily the same thing) on one end and the Living Constitutionists on the other, with each side voting pretty much along party lines. Although the Warren Court justices were somewhat predictable, their votes were not nearly as partisan as those of today's justices.

There you have it... My humble thoughts...
The conclusion: Although most Supreme Court compositions throughout the US's history could be divided into Conservative and Liberal factions, those labels meant vastly different things in the past. In the last few decades, the Court has swung the right, with the conservative wing almost off the tipping point and even the liberal wing being far less liberal than in the past.

According to a US News & Weekly Report 2008 ranking of conservatism in the post-1937 Court, four of the five most conservative justices of the last 75 years are currently sitting on the Court, and most of the top ten have sat on the Court within the last few decades, while none of the ten least conservative justices are currently sitting.
Finally, an article published a few days ago includes a chart (below) showing percentages of decisions featuring one-vote majorities (in many cases 5-4 decisions), and the Rehnquist and Roberts Courts both have over 20% of their decisions decided by such majorities, an increase of 5% from the Burger and Vinson Courts and about 10% from the Warren and Stone Courts.


No comments:

Post a Comment