I have called out in this column repeatedly the false claim that we have a “conservative” Supreme Court—see here, here, here, and here. I also have pointed out the inaccuracy of claiming that the Court has a 5-4 conservative majority.
Generally speaking, applying the word “conservative” to any current Supreme Court justice is grossly misleading. Here’s why:
The dominant American use of the word “conservative” refers to certain specific values: Judeo-Christian tradition, smaller government, free markets, and the like. But no justice currently on the Court reliably votes in accordance with those values. Nor has there been any such justice for the last 80 years.
Consider, for example, Clarence Thomas, who is often mislabeled as a “conservative” justice. He voted to permit states to legalize marijuana. He opposes the pro-free-market Dormant Commerce Clause doctrine. He votes that way not because he is a “conservative” but because he is an originalist who interprets the Constitution without regard to whether the outcomes are liberal or conservative.
As applied to four of our current sitting justices, the term “liberal” is somewhat more accurate, but even that is misleading. There are important jurisprudental differences among them, just as there are important differences with “liberals” who served in the past. Justice Felix Frankfurter, who served from 1939 to 1962, was a New Deal liberal. But his devotion to judicial restraint was very different from the approach of activist modern justices such as Ruth Bader Ginsburg and Sonia Sotomayor.
A new book review by Donald A. Daugherty, Jr. uses a few statistics to puncture the “conservative Supreme Court” nonsense. Drawing on cases from the most recent (2018) term, he criticizes
“. . . the tiresome falsehood that conservatives vote as one ‘bloc.’ . . . Unexamined, however, is the possibility that a liberal bloc exists, which is a much more solid proposition. In the 67 cases decided after argument, the four Justices appointed by Democratic presidents voted the same way 51 times, while the five Republican appointees stuck together 37 times. Of the 20 cases that split 5-4, only seven followed the conservative-liberal divide that conventional wisdom would expect, with a conservative joining the four liberals more often than the five conservatives voting together. By the end of the Term, each conservative Justice had joined the liberals as the deciding vote at least once. [V]otes by the conservative Justices (other than perhaps Samuel Alito) often surprise, while the four liberals vote reliably for ‘progressive’ outcomes.”
Moreover, it is a striking fact, much of the jurisprudence liberal commentators call “conservative”—including that applied in controversial decisions such as Citizens United v. Federal Election Commission—actually consists of case precedents issued by “progressive” courts during the 20th century. To many liberals those precedents seems “conservative” because the Court sometimes applies them to reach results they do not like. Dissatisfied liberals would rather the precedent be discarded for their benefit, now that it has served liberal purposes.
Why does this “tiresome falsehood” of the “5-4 conservative Supreme Court” survive? I think it is because it promotes so many people’s interests so well. Liberal media, politicians, and pressure groups are unhappy with the current bench because it does not arrive invariably at results they like. So they brand the justices as “conservative” to undermine their legitimacy and to advocate for more leftist justices. Conservative politicians and pressure groups identify centrist justices such as John Roberts and Brett Kavnaugh as “conservative” as a way of rallying support and congratulating Republican presidents as re-making the bench. But for reasons we may explore later, re-making the bench is something Republican presidents have not done, and probably can never do.
