The 2007 Supreme Court term began last month within an interesting and entirely unfamiliar context and atmosphere. There is widespread despair within the American left that after decades of movement to the left—movement sometimes distinct and rapid, other times moderate and slow—the Court has veered suddenly and entirely to the right. If we were to take them at their own word, the Court has begun an assault on women’s reproductive rights,1 has eroded the First Amendment’s guarantee of freedom of speech,2 and has even overturned Brown v. Board of Education.3
This goes much (much, much, much) too far.
To be sure, in the 2006 term there was a noticeable and not insignificant change in the Court’s jurisprudence, generally and within several different areas of the law. In Gonzales v. Carhart the Court upheld a restriction on the practice of abortion for the first time in its history. In Morse v. Frederick it ruled that public school officials can prohibit students from displaying (what can be interpreted as) pro-drug use messages and that protective standards set in Tinker v. Des Moines over thirty years ago would not always be applied. And in what finally sent the left into full hyperventilation, the Court found two racial balancing schemes used in Seattle and Louisville public high schools to be violative of the Fourteenth Amendment’s Equal Protection Clause in Parents Involved in Community Schools v. Seattle School District No. 1.
These decisions were certainly not of the kind that Court watchers have grown accustomed to, but they hardly constituted a sharp swerve to the right by the Court. Carhart II fit entirely within the parameters set forth in the plurality opinion in Planned Parenthood v. Casey, not a conservative or constitutionalist decision by any means. Parents Involved fit similarly within the Court’s previous decision in Grutter, also not a Conservative or Constitutionalist decision. And in Morse the Court only mildly altered (or tinkered with) Tinker.
Jonathan Alder correctly wrote after the conclusion of the term that the balance of "Warren and Burger Court precedents that most stoke conservative ire remain on the books."4 The Court has not become what the left says it has. Far from taking a sharp turn to the right, it at most retracted a bit from its generational drift to the left.
And yet it might not have even done that. From all indications, the 2006 term may have been no more than a blip, a puny little anomaly on the chart.
In every single one of the cases from last term that have so rankled liberals, the Court was split five to four and Justice Anthony Kennedy was the deciding vote. And in most of those split decisions he did indeed side with what is considered to be the conservative block on the Court.
But was this because Justice Kennedy is reliably and consistently conservative himself? From all indications, no. Justice Kennedy is "conservative" on some legal issues and not on others. It so happened that those areas of law in which he does tend to have a conservative jurisprudence were often covered in cases on the ‘06 docket.
Quoting Mr. Adler again, "The Court appeared more conservative last term, in part, because of the particular mix of cases on the docket. This term presents a decidedly different mix, however, and will show that the Court remains significantly less conservative than some would like, and others fear."5
A brand new docket with new cases and new areas of law addressed may very well produce a different looking Court entirely. A few of those cases will touch upon detention of enemy combatants and the death penalty, both areas which Justice Kennedy has tended to be liberal on.
What’s more, decisions rendered by the Court last term that were ostensibly conservative may in fact not be. Retired Circuit Court Judge Robert Bork opined that some of the decisions handed down by the Court from last term "at least occasion for speculation that Roberts and Alito may be willing to make only minor adjustments to liberal doctrines that have no basis in the Constitution."6 In such a scenario all the left would have to fear is that the days of the Court’s advance to the left—of obfuscating, manipulating, and basely disregarding the text of the Constitution—are over, with the Roberts Court largely declining to overrule the precedential products of that advance however.
Regardless, the point of all of this is that no one has any place to make a conclusion on what the Roberts Court is right now and what it will become, certainly not the kind made by Jeffrey Toobin that the Court is now "dramatically more conservative" than previous Courts and by Linda Greenhouse that it is now the "Court that conservatives had long yearned for and that liberals feared."7
The Roberts Court, with Justice Alito in place of the retired Justice O’Connor, has only one full term’s slate of cases on record to examine, not nearly a large enough sample from which to draw any definitive conclusions. There are many important areas of law heretofore untouched by this Court, and at most any one area of law has been addressed only once or twice. It will take at least this upcoming term, and probably a few more terms, before we can draw any major conclusions. Accordingly, the left ought to at least wait until next July before it mournfully engages in any more hymns of Armageddon.
1. Memorandum from NARAL Pro-Choice America Legal and Policy Research Department on Supreme Court Decision in Federal Abortion Ban Cases to Interested Parties (April 19, 2007). http://www.prochoiceamerica.org/assets/files/federal-abortion-ban-legal-memo.pdf
2. Editorial, (2007, June 26). Three Bad Rulings. The New York Times, Retrieved November 4, 2007, from http://www.nytimes.com/2007/06/26/opinion/26tue1.html?n=Top/Opinion/Editorials%20and%20Op-Ed/Editorials
3. Editorial, (2007, June 29). Resegregation Now. The New York Times, Retrieved November 4, 2007, from http://www.nytimes.com/2007/06/29/opinion/29fri1.html?n=Top/Opinion/Editorials%20and%20Op-Ed/Editorials
4. Adler, Jonathan H. (2007, July 5). How Conservative is this Court?. National Review Online, Retrieved November 11, 2007, from http://article.nationalreview.com/?q=Y2Y3NjNkM2ZkYTcxNzQwYTBhZWZkNzEyZGYyMWExMjE=
5. Adler, Jonathan H. (2007, October 1). First Monday. National Review Online, Retrieved November 11, 2007, from http://article.nationalreview.com/?q=NTM3ZmRmZmM2ZWQ5NzFlZTE3YWEyMTk2NzAyOGRjYTg=
6. Bork, Robert H. (2007, July 30). 4+1. National Review, LIX(13), 18-20.
7. Greenhouse, Linda (2007, July 1). In Steps Big and Small, Supreme Court Moved Right. The New York Times, Retrieved November 4, 2007, from http://www.nytimes.com/2007/07/01/washington/01scotus.html?_r=2&hp&oref=slogin&oref=slogin
