NRO's desperate attack on finding that Roberts Court is the most conservative "in living memory"

Blog ››› ››› ADAM SHAH

Ed Whelan and two of his colleagues at National Review Online have repeatedly attacked a New York Times article that reported on a study finding that the Supreme Court under John Roberts is "the most conservative one in living memory." Their attack is unsurprising since Whelan based a major part of his testimony opposing Elena Kagan's Supreme Court nomination on the premise that the conservative Supreme Court majority is actually non-ideological. But their complaints are undermined by the words of former Chief Justice William Rehnquist who described the philosophy of a "strict constructionist" in explicitly results-oriented terms.

NRO contributor Matthew Franck complained that the study relies on "the facile equation of politically-favored or -disfavored outcomes with ideologically-driven behavior." Carrie Severino put the argument and the defense of conservative justices even more strongly, writing:

Put briefly, the study identifies litigants/interests in Supreme Court cases by gross ideological categories (e.g. criminal defendants vs. prosecution, corporations vs. consumers, unions vs. employers, government vs. individuals), then adds up the winners and losers from the "left" and the "right" to assign an overall ideological score. Thurgood Marshall famously described his approach to the law as "you do what you think is right and let the law catch up," and if you subscribe to Marshall's philosophy, this type of blunt head-counting might make sense. The problem is that "conservative" judges are downright allergic to such an activist philosophy, because they believe that it is the judge who must "catch up" to the law by putting aside political preferences when deciding cases.

Fatal to the claim that conservative judges put aside "political preferences when deciding cases," however, are Rehnquist's words. As a Nixon administration official, Rehnquist reportedly defined a "strict constructionist" as someone who "will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs."

And it's hard to get more clearly results-oriented than that.

Whelan kicked off the NRO complaint-fest with a post declaring "I don't think that the proposition set forth in the article's title is very meaningful." One of Whelan's major complaints was that the study did not look at the reasoning behind each case, but rather coded the cases simply by results:

As [New York Times reporter Adam] Liptak acknowledges, the ideological coding of cases that political scientists used to generate the data he highlights is "a blunt instrument." For example, that coding would apparently treat identically, as "conservative," both the position that the Constitution leaves abortion policy to the political processes and the position that the Constitution forbids permissive abortion laws. (This essay of mine highlights the difference between those two positions.)

Perhaps I'm mistaken, but I gather that the basis on which the political scientists claim that Justice Alito is the "third-most conservative justice to serve on the court since 1937" is limited to how he has voted on the menu of cases he has faced, versus how other justices voted on the very different menu of cases they faced. That approach would seem worse than blunt. If, for example, there's no reason to believe that Justice Robert Jackson or Justice Hugo Black would have believed that the Constitution prohibits the death penalty for the crime of raping a child, why does Alito's conservative score get an upward bump over theirs merely because he was on the Court for (and in dissent in) Kennedy v. Louisiana? In other words, the ideological case count would seem particularly ill-suited to comparing justices from different eras.

Franck and Severino soon followed suit with their own posts attacking the Times.

It's not surprising that Whelan jumped on the Times article, because -- if left uncontested -- it would strongly undermine a central point of Whelan's testimony opposing Kagan's nomination to the Supreme Court. In his written testimony on Kagan's nomination, Whelan sought to rebut the charge that the Roberts Court had engaged in judicial activism. He stated:

In recent days and weeks, various supporters of Ms. Kagan's nomination, including a number of senators, have sought to bolster their position-and, one suspects, to distract attention from the nominee's manifest shortcomings-by flinging assertions that the Supreme Court under Chief Justice John Roberts has engaged in a pattern of conservative judicial "activism." I will explain in this part why I believe that these assertions are badly confused and why a sober assessment of the current reality and future risk of judicial activism provides further compelling reason to vote against the Kagan nomination.

But have conservative justices really put their political views to one side and dispassionately decide all cases that come before them solely on the basis of what the law really requires?

Well, one simple answer would be: Just look at Bush v. Gore, the case that ended the Florida recount and handed the presidency to George W. Bush. The majority opinion in that case, which received the vote of the court's most conservative justices, was so bad that most conservative legal experts were unwilling to defend it. Even one of the case's strongest academic defenders, Michael McConnell (who went on to be a Bush-appointed appellate court judge), could only muster "Two-and-a-Half Cheers" for the opinion.

And three of the justices who voted for the controlling opinion -- Antonin Scalia, Anthony Kennedy, and Clarence Thomas -- are among the five-justice conservative majority on the Roberts Court. Did they really act without regard to political ideology in that case?

Equally important, and often overlooked, however, is that Rehnquist gave an explicitly political response when asked to describe the philosophy of a "strict constructionist." (It should be noted that Scalia and Thomas describe their judicial philosophy with another term, "originalism," not strict constructionism.)

According to John Dean, former White House counsel during the Nixon administration, Rehnquist stated:

A judge who is a "strict constructionist" in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs -- the latter two groups having been the principal beneficiaries of the Supreme Court's "broad constructionist" reading of the Constitution. The following conclusions about [failed Nixon Supreme Court nominee] Judge [Clement] Haynsworth's ideas of the law in these areas appear warranted:

(a) With regard to criminal law, he appears to be a "strict constructionist" quite ready to recognize the rights of society as well as those of the accused.

(b) With respect to civil rights, he appears to be more of a "strict constructionist" than the present Supreme Court, but not by any means a "die-hard."

Sounds like a textbook case of a results-oriented judicial philosophy, doesn't it?

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