Hidden in Plain Sight: A Conservative Court Often Turning Back the Clock

Supreme Court

By Reed McGinley-Stempel.

As the Supreme Court’s most recent session came to an end, expressions (and therefore hashtags) of joy and relief flooded my Facebook, Twitter, and Instagram feeds as people celebrated the term’s most highly anticipated decisions, United States v. Windsor and Hollingsworth v. Perry.  In these two cases, the Court struck a blow on behalf of the marriage equality movement and, consequently, civil rights in America.  The Windsor decision was particularly pivotal because the court rejected the Defense of Marriage Act’s definition of marriage as being between one man and one woman.  Given the importance of these judgments, I understood and shared my generation’s exuberance.  However, scrolling through my various newsfeeds, I was struck by our generation’s largely mistaken image of the Supreme Court as an institution of liberalism or, at the very least, evenhandedness.  The current Court is in fact the most conservative in nearly a century[1].  According to a study done by conservative Judge Richard Posner and UChicago law professor William Landes, four out of the five most conservative justices since 1937 are members of the current Supreme Court.  But because the Court upheld the Affordable Care Act (aka “Obamacare”) and has (by 5-4 margins) occasionally supported civil rights, the Court is erroneously perceived by many as moderate or even progressive.  A little research revealed that this misconception is not limited to our generation.

A recent Rasmussen poll found that a surprisingly high 39% of voters believe the Supreme Court to be too liberal, while only 24% consider it too conservative.  Even more alarming, since 2009, the Court’s approval rating among conservatives has dropped from 48% to a meager 16%, but among liberals, its popularity has remained unchanged at 46%.  In light of the Court’s larger body of work, these perceptions are bewildering, yet sadly defensible considering media coverage of the Court.

For many casual followers of the Supreme Court, the Windsor and Hollingsworth decisions signify the work of a bench steadily embracing progressivism.  Indeed, it was these two cases that disproportionally captured the media and public’s attention this term.  Unfortunately, the attention given to Windsor and Hollingsworth belies the reality of the Supreme Court’s prevailing conservatism.  Last summer’s blockbuster case, National Federation of Independent Businesses v. Sebelius (the Healthcare case), had a similar effect.  While receiving far and away the most media coverage of the term, the case presented an image of a reformist Court.  In the landmark case, the Court upheld the constitutionality of the Affordable Care Act’s individual mandate (by labeling it as a tax), and therefore prevented Obama’s health policy from becoming a shell of its former self.  The high-profile coverage given to relatively enlightened decisions like these obscures the often reactionary character of the incumbent Court.

Although the Windsor, Hollingsworth, and Sebelius decisions demonstrate the Court’s occasional ability to transcend its partisan make-up, such instances are unfortunately few and far between.  Amidst the celebration of the court’s handling of gay rights in this past session, many of its more controversial decisions have largely escaped scrutiny.  In its most recent term, the Court has managed to: obliterate individuals’ right to remain silent under duress (Salinas v. Texas); reduce employer liability regarding sexual harassment (Vance v. Ball State University); further protect pharmaceutical companies from tort liability (Mutual Pharmaceutical Co. v. Bartlett); allow DNA testing of all arrestees regardless of crime (Maryland v. King); preserve the government’s extensive new surveillance powers (Clapper v. Amnesty International USA); and, in the important voting rights case, undo a half-century’s worth of safeguards against institutional racism (Shelby County v. Holder).

While the Shelby County ruling has received more attention than the other five, the DOMA and Proposition 8 cases have still greatly overshadowed its grave implications.  In the case, the court rebuffed the current coverage formula in Section 5 of the Voting Rights Act, which determines what states require preclearance in order to enact changes in electoral law.  Section 5 has been instrumental in preventing voter discrimination since its inception in 1965, but the Court’s conservative bloc determined the formula to be outdated.  Immediately after the Court’s ruling, Texas—a state previously requiring preclearance—quickly placed its controversial voter identification legislation into effect, thereby enacting the type of de facto disenfranchisement that Section 5 was created to avoid.  Although only select counties required preclearance in North Carolina under the Voting Rights Act, the state legislature appeared similarly emboldened by the Court’s ruling and has since implemented one of the most draconian pieces of voter identification legislation in the nation.

Unfortunately, in a term where the Court has been applauded for advancing one civil rights movement, it has also reversed the course of another.  And whether fueled by poor media coverage, some psychological bias, or a combination thereof, the American populace has nevertheless managed to create a severely skewed image of the Supreme Court—a Court worthy of conservatives’ derision and liberals’ support. This ill-conceived narrative allows the Court to continue to evade meaningful scrutiny of its conservative bent and, consequently, the implications of its less publicized, yet significant decisions.


[1] To be sure, speaking of ‘The Court’ in monolithic terms belies the complexity of an institution with nine different members who have varied opinions on a wide range of issues.  Nonetheless, on the most contentious issues of the day, the four liberal justices – Breyer, Ginsberg, Kagan, and Sotomayor – are still almost always at loggerheads with the four conservatives – Alito, Scalia, Thomas, and Chief Justice Roberts.  Justice Kennedy remains the primary swing vote on the Court, but as the cases this term illustrate, he sides with the conservatives much more frequently than he does with the liberals.

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