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I Am An Important Fact: The Supreme Court is Historically Conservative Edition

Yesterday, I quoted Dahlia Lithwick making the case that Sonia Sotomayor "has taken a fairly moderate, text-based approach to the cases before her, placing her much closer to retiring Justice David Souter than to the late Justice William Brennan on the judicial activism spectrum." That's not surprising. They don't make left-wing judges like they used to. The Supreme Court, and the legal profession in general, have moved decisively rightward since the '70s. Cass Sunstein, who clerked on the Court in 1980, explains it well:

In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.

First we would have to chop off the Court's right wing, removing Scalia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.
Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.
Then we would have to leave Breyer, Stevens, Souter and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart.[...]
To say the least, all this would represent a radical change in the Court's composition -- so radical that liberals cannot even fantasize about it. But this radically changed Court would be essentially identical to the supposedly conservative Court of 1980!
Here is another way to demonstrate the point. In 1980 Stevens often operated as the Court's median member; in many cases he (along with Powell) was the Justice Kennedy of that era. But Stevens is frequently described as the most liberal member of the current Court. If he qualifies for that position, it is not because of any significant change in his own approach, but because of a massive shift in the Court's center of gravity.

By Ezra Klein  |  May 29, 2009; 10:00 AM ET
Categories:  Legal  
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Sunstein's correct if you look at the timespan from the 1970s to today, but I think it misses the larger picture. In fact, the Supreme Court has traditionally been a very conservative, right-wing force in American politics. Almost all the landmarks, Marbury, Dred Scott, the Civil Rights cases, Lochner, the Holmes-Brandeis dissents, the cases leading to Roosevelt's court-packing scheme, have all been right-wing reactions to progressive movements.

It's the Earl Warren years and just after that are really the exception: the time when ordinary people could look to the Court to defend their rights. Perhaps we can get back to it after a few terms of Democratic Presidents, but it's been very rare in US History that the Court has been a force for positive change.

Posted by: woofer123 | May 29, 2009 11:28 AM | Report abuse

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