Conservative Court?

[earl maltz]

As I noted at the beginning of my previous post, the question is "Compared 
to what?"  Personally, I compare the Court's constitutional jurisprudence 
to a regime in which judicial review did not exist.  Thus, for example, 
although Planned Parenthood moved the law marginally to the right on the 
abortion issue, in my view the constitutional jurisprudence of the 
Rehnquist Court remains overwhelmingly in favor of the pro-choice 
side.  Even if Roe were overruled, it would simply move constitutional 
doctrine to neutral.  One could also compare contemporary jurisprudence to 
the original understanding, in which case it would emerge as overwhelmingly 
tilted toward liberal viewpoints.



At 11:06 AM 11/2/2005 -0800, you wrote:
>I have to get back to work too, but two comments on this thread:
>
>1) With all due respect to Earl Maltz and Scott Gerber, I think it is 
>disingenuous to argue that, since the Court has been as conservative as 
>some want, that it has not moved considerably toward the "political right" 
>or toward the "conservative" direction in American politics since 
>1980.  To point to cases where the Court hasn't taken the most 
>conservative position and then argue that it is not conservative, is to 
>try to find the rule in the breach.  For example, to argue that the Court 
>has upheld affirmative action in Grutter, one has to ignore that 
>affirmative action has been significantly limited in cases such as Aderand 
>and Shaw v. Reno; to argue that the Court has been "hostile" to the death 
>penalty in cases such as Roper v. Simmons, one has to ignore that the 
>Court reversed itself to uphold the death penalty in Gregg v. Georgia and 
>McCleskey v. Kemp and has consistently limited death row appeals in cases 
>such as Barefoot v. Estelle and Payne v. Tenn.; to argue that the didn't 
>allow Congress to overturn the Miranda rule in Dickerson, one has to 
>forget that Mirranda has been significantly narrowed in cases such as 
>Fulminante and Brecht (ditto with respect to the exclusionary rule of Mapp 
>being significantly narrowed in cases such as United States v. Leon and 
>Massachusetts v. Sheppard); to argue that the Court has protected the 
>abortion right, one has to ignore that it has been made signficantly more 
>vulnerable to state regulation in decisions such as Casey and is now on 
>the verge of being overturned; to argue that it hasn't allowed religious 
>groups free reign in the public square in cases such as Weisman or 
>Allegheny, one has to ignore that the Court has generally protected and 
>expanded the space for religious exercise in public institutions in cases 
>such as Marsh, Lambs Chapel, Mergens, Central Schools, Zelman, etc., 
>etc..  Finally, to make this argument one has to completely ignore (or 
>entirely distort) outright wins for the political right in cases such as 
>Bush v. Gore, or those under the Court's new federalism jurisprudence in 
>cases such as Lopez, Printz, Kimel, Morrison, Seminole Tribe, Alden v. 
>Maine, Garrett, etc. (and note that in nearly all these cases the Court 
>selectively applies its federalism principles to strike down liberal 
>policies while refusing to strike down conservative policies in cases such 
>as Raich).  I could go on but the point should be clear -- simply because 
>the Court has not been as "conservative" as some wish, does not mean it 
>has not moved significantly in the "conservative" direction over the past 
>2-3 decades.  (One possible exception to this is sexual preference and the 
>Court's decision in Lawrence.  Bet even here I would argue that there is 
>no "conservative" consensus on this issue -- if you polled Republicans, 
>for example, my guess is that most would oppose the criminalization of 
>private consensual sodomy as opposed to say the issue of whether same sex 
>marriages should be allowed.)
>
>2)  But the discussion on this thread brings up my original argument.  It 
>is problematic to discuss the political directionality of the Court using 
>any kind of self-referential measure -- whether this is quantitative 
>attitudinal methods and measures (that compare justices against each 
>other) or more traditional doctrinal analyses and measures (which compare 
>the Court today against the Court yesterday).  Instead, if one wishes to 
>examine the political direction or the political role of the Court, then 
>one has to reference the broader American political system and pay 
>attention to the forces and groups that make up the political left and the 
>political right in today's political world (note that this is not a 
>philosophical measure of right and left -- I think no one can seriously 
>argue that the Democratic Party today is a "leftist" party -- but it is a 
>political measure).  Is the Court more or less aligned with the policies 
>and positions of those parties and groups on the political left or the 
>political right in American politics today?  Shameless plug -- the 
>research Mitch Pickerill and I have done examining the actual 
>constitutional/legal policies positions taken by the Democratic and 
>Republican parties in their platforms, legislative proposals, and 
>presidential policy statements since the 1960s, makes clear that the Court 
>has moved increasingly toward the policies and positions of the GOP over 
>the past 2-3 decades -- on federalism, property rights, the death penalty, 
>abortion, affirmative action, the rights of the accused, etc.  Again, not 
>all conservative groups are happy with all GOP policies.  Social 
>conservatives for instance, may wish that the GOP supported  criminalizing 
>private homosexual behavior (it hasn't), some libertarians may wish the 
>party did not support narrowing the abortion right (but it has).  If you 
>empirically examine the issue areas where the parties in fact have staked 
>out clear stands, the Court since 1980 has in nearly every case moved 
>toward the GOP position.
>
>Best,
>CWC
>
>
>
>
>At 05:33 AM 11/1/2005, Earl Maltz 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."
>>
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu
>>To subscribe, unsubscribe, change options, or get password, see 
>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>Please note that messages sent to this large list cannot be viewed as 
>>private.  Anyone can subscribe to the list and read messages that are 
>>posted; people can read the Web archives; and list members can (rightly 
>>or wrongly) forward the messages to others.