Conservative Court?

[Michael Zimmer]

Added to the mix will be the interpersonal aspects of the new Court. It
certainly has been speculated that some of the slight moderation of both
O'Connor and Kennedy is a product of the way that Scalia and Thomas
proceed. Roberts and, if confirmed, Alito would likely have much more even
tempered, "moderate" ways of arguing their "right" leaning positions. The
question then is what that means for Kennedy and indeed all the members of
the Court.

Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8833
973.642.8194 fax


                                                                           
             Theodore Ruger                                                
             <truger at law.upenn                                             
             .edu>                                                      To 
             Sent by:                  Mark Graber <mgraber at gvpt.umd.edu>  
             conlawprof-bounce                                          cc 
             s at lists.ucla.edu          conlawprof at lists.ucla.edu           
                                                                   Subject 
                                       Re: Conservative Court?             
             11/01/05 10:15 AM                                             
                                                                           
                                                                           
                                                                           
                                                                           
                                                                           




Further to Mark's point about relative conservatism/liberalism on the
Court, the prospect of Alito replacing O'Connor will almost certainly
increase the importance of Justice Kennedy at the center of the court's
voting array, and raises some interesting questions about his future
voting behavior.  (I'm assuming, safely I think, that both Roberts and
Alito will be relatively more "conservative" than O'Connor/Kennedy as
measured in a linear ideological space over the Court's entire
docket--and I'm sensitive to Sean Wilson's point, which I just read
after drafting the rest of this email, that some issue areas don't fit
well on a single space--but Kennedy/OConnor were median voters across
various issue areas).  For the past decade or so both Kennedy and
O'Connor have vied for, and often shared, the crucial role of median
voter on the Court across a number of close issue areas.  Alito's
appointment will not necessarily "move the Court to the right" in the
short term, but it will undoubtedly thrust Kennedy into a new position
as the Court's sole median in many issue areas as opposed to the dual
role he and O'Connor occupied for many years.

Rather than ask "How will Alito vote?", then, the real question we
should be asking is "How will Kennedy vote when he has the median
ideological space largely to himself?"  Here the attitutinalist and
institutionalist perspectives give quite different answers.  The
attitudinal model would say that Kennedy will continue to vote his
sincere preferences, and his votes (and thus the Court's results in many
areas) won't change much, except in areas where he and O'Connor
diverged.  Under a more strategic view, though, O'Connor's replacement
by Alito unclutters the institutional center of the Court, leaving
Kennedy newfound latitude to drift as far "right" as Roberts or as far
"left" as Souter/Breyer while still maintaining his
outcome-determinative median status.  My sense is that this new
latitude--if it produces changes in Kennedy's voting at all--is more
likely to become manifest in the conservative direction, since even
before this fall he had four collegues on O'Connor's left to join him
whenever he wanted to drift in that direction (e.g. Lawrence v Texas).

Ted

Theodore W. Ruger
Assistant Professor
University of Pennsylvania Law School
3400 Chestnut Street
Philadelphia, PA 19104
(215) 573-6018


Mark Graber wrote:

>I take it the Maltz/Wilson debate highlights a difference between a
>certain kind of political science research tradition and a more legal
>tradition (of which some political scientists, myself included,
>identify).  I think Professor Maltz would agree that in some sense the
>Rehnquist Court is more conservative than a court composed of nine law
>professors drawn at random or probably even nine lawyers drawn at
>random.  He almost certainly would agree that Rehnquist is more
>conservative than, say, Ginsburg.  But, when political science research
>is being correctly specified, all it can say is whether a justice is
>more conservative than another justice.  For the most part, for example,
>proponents of the attitudinal model have not produced any evidence that
>Rehnquist votes the way he does because he is a conservative.  What they
>have produced is lots of evidence that Rehnquist votes more
>conservatively than Ginsburg because Rehnquist is more conservative than
>Ginsburg.
>     But Maltz is asking the substantive question, not the comparative
>question.  Granted this court is more conservative than it could have
>been when compared to other judicial appointees, how conservative is it,
>for example, with respect to conservatism as defined by the National
>Review.  And, the probable answer is, "not very."  The best point here
>may be Tushnet.  The court reflects a certain country-club conservatism,
>but is neither yet conservative (really libertarian) in the image of
>Cato or socially conservative.
>
>Mark A. Graber
>_______________________________________________
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