Court's shift to the right no sure thing

October 02, 2006|By Lionel S. Lewis

In light of the ever-changing character of America, there has long been a concern that the Supreme Court's members and their decisions cannot adequately reflect America's shifting variety of viewpoints, experiences and ways of understanding the Constitution.

Today, as many as five of the court's nine members are identified as conservatives, while one-third to 40 percent of Americans describe themselves as such. In the last 50 years, all four of the court's chief justices and a great majority of associate justices have been appointed by Republican presidents, so the present court is not the first one whose members have largely been selected from the right. It might be expected that such a court would move the law in that direction. But this has not been the case.

As the new court begins its first full term this week with a solid conservative bloc, some are convinced that it is poised to restrict individual freedoms, particularly by placing additional limits on women's reproductive rights and by undoing the federal government's commitment to leveling the playing field in employment and education. Didn't it rule in the spring that evidence seized in what, for nearly a century, had been deemed improper police actions can be admissible at trial?

To be sure, the court under Chief Justice John G. Roberts Jr. could begin scaling back individual liberties. However, this will not necessarily happen. After all, for decades, despite most of its members being appointed from the political right, the court has rendered mostly centrist and liberal decisions.

The court has never been representative of the ever-changing diversity that is America; it has always been fairly homogeneous. All but four members have been white males, and nearly 85 percent have been of Anglo-Saxon ethnic stock.

Moreover, most Supreme Court justices have come from privileged backgrounds and attended elite schools. One might expect that, as a result, centrist and liberal interests would have been largely ignored by the court. In fact, the evidence suggests the opposite.

According to one listing of the court's most important decisions in the past 50 years, the justices twice expanded the right to privacy (Griswold v. Connecticut, 1965, and Roe v. Wade, 1973) and narrowed it once, in Bowers v. Hardwick, 1986 - a decision that the court reversed 17 years later (with the votes of three justices appointed by three different Republican presidents) in Lawrence v. Kansas.

In Heart of Atlanta Motel Inc. v. United States, 1964, and South Carolina v. Katzenbach, 1966, the court upheld that discrimination in interstate commerce and voting was illegal. In Regents of the University of California v. Bakke, 1978, it affirmed that race or ethnic origin can be used as a factor in hiring and in admission to educational institutions.

Moreover, it advanced the rights of criminal suspects and the due process rights of all (Miranda v. Arizona, 1966) and the rights of indigent defendants (Gideon v. Wainwright, 1963). In contending that the First Amendment limited the right of government to impose prior restraint of expression, it extended freedom of the press in New York Times Co. v. United States, 1971.

On the other hand, although the court held that the states are not free to deny the equal protection clause and again advancing the principle of one person, one vote (in apportionment) in Baker v. Carr, 1962, it very nearly turned the same concepts, principles and arguments upside-down 38 years later by injecting itself into Bush v. Gore, 2000.

Finally, the court reaffirmed two fundamental constitutional principles when it ruled that there are limits on the power of the executive branch of government (United States v. Nixon, 1974) and that the separation of powers between the branches of government must be maintained (Immigration and Naturalization Service v. Chadha, 1983).

What we find is a court comprised of putative conservatives - or at least justices appointed by Republican presidents - rendering an ample number of philosophically moderate decisions. Often, the earlier centrist and liberal decisions have become the foundations for subsequent moderate decisions. This was most evident in the court's June ruling striking down a campaign reform law while upholding precedents limiting political contributions.

Two points are clear. One, the court cannot be readily understood on a liberal-conservative axis. Two, judicial restraint, precedent, the tradition of law and the wisdom of the Constitution guide justices more than their temperament, values or ideologies.

Both the left (unhappily) and the right (happily) seem to have concluded that the conservative moment has arrived. If President Bush gets to make another appointment to the court, their conclusion may well be vindicated. But for the time being, recent history would suggest that the jury is still out.

Lionel S. Lewis, a professor emeritus at the State University of New York, Buffalo, is the author of "The Cold War and Academic Governance: The Lattimore Case at Johns Hopkins." His e-mail is

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