Conservative Court?

Sean Wilson whoooo26505 at yahoo.com
Tue Nov 1 06:43:17 PST 2005


There is no question that the empirical data shows that this Court as a whole has very slight overall directionality. This is a "slightly conservative" Court. Those scholars who refer to the Rehnquist Court as the "Rehnquist Five" are not even looking at their own data properly. This court is NOT as ideologically driven (meaning directionality) as previous Courts have been. I'm preparing a paper for the Southern that shows that. You don't need impressionism over "large" cases to see that -- the data tells the story just fine.
 
Now, of course, particular domains of voting are much more ideologically driven. As my forthcoming paper for the Southern shows, searh and seizure and obscenity voting show higher rates of directionality in voting. (But core political speech is the exact opposite -- the content restriction doctrine appears to have an antacid effect upon "normal" poliics. Knowing a justice's ideology for that subject actually makes prediction of votes worse!).  
 
Political ideology is a fluctuating force upon the Court, not a defining one. Sometimes it is high, sometimes it is low. Overall, however, this Court is rather tepidly conservative. Who knows how the trade of Rehnquist and O'Connor for Roberts and possibly Alito will affect that calculation. Roberts is the wild card. If he goes in the direction that Jeff Segal thinks he will, I would say that this Court is actually going to become slightly less conservative on an overall basis, assuming Alito's voting tendency matches Scalia's (particular results will change, of course).

Earl Maltz <emaltz at camden.rutgers.edu> wrote:
Both Clayton Cornell and Elizabeth Dale have asserted that we have a 
"conservative" Court. I suppose the question is, compared to what? I will 
grant that a majority of the justices on the Court were appointed by 
conservative Presidents (although, in reality, George Bush the first had no 
discernible ideology on domestic issues). But consider the actual holdings 
of the Court on the constitutional issues that are of importance to the 
liberal academic establishment:

a) GLBT rights--more protective than any Court in history.

b) Women's rights--as protective as any Court in history.(with the 
exception of Nguyen, which is a special case)

c) Abortion rights--for all intents and purposes, remain intact

d) Religious observances in public schools--unremittingly hostile 
(although, admittedly, on aid to private schools, Barry Lynn and his 
minions are no doubt upset).

e) Capital Punishment--more hostile than any Court in history

f) Immigrant rights--more protective than any Court in history.

e) Property rights--protected only at the margins (see Kelo).

f) Federalism--Admittedly imposes significant new constraints on federal 
government authority to regulate state governments, but leaves feds free to 
regulate any private activity that is even plausibly economic.

This is not a list that pleases anyone that I know show describes himself 
as consistently "conservative."

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