Revision Update: US Politics: Exemplar Answer: A Conservative Robert’s Supreme Court?

Discuss the view that the Roberts Court is a conservative courtThe landmark ruling of NFIB v Sebelius in 2012 which sanctioned Obamacare provides a clear illustration of the jurisprudence of the Roberts Court as it ruled contrary to public expectation in a liberal manner. However, others would suggest that this is the exception rather than the rule.The Roberts Court may be regarded as conservative due to the composition of the court and the impact of recent appointments. Following the resignation of Justice O’Connor, President GW Bush had the opportunity to replace a centrist swing voter with a conservative. Justice Alito. This bolstered the conservative wing of the court. Justices Scalia and Thomas were already in place after their appointments by Presidents Reagan and GH Bush respectively. The bush appointments of Roberts and Alito, with Justice Kennedy who supports the conservative side 60-70% of the time has meant that the Court has a conservative majority which can outvote the liberal bloc of Ginsburg, Breyer, Kagan and Sotomayor. Obama’s appointments have had little impact. Sotomayor and Kagan replaced two liberals (Souter and Stevens respectively) unlike the Alito appointment.

The rulings from the court also indicate a conservative bias. Conservatives are less likely to support the accused in criminal proceedings and to favour the states over federal government. In 2012, in Florence v Board of Chosen Freeholders, strip searches were allowed despite privacy rights outlined in the 4^th Amendment. Baze v Rees 2007 held that the lethal injection was not cruel and unusual punishment despite the fact that its administration by non-medical staff might result in lengthy deaths during which the prisoner is conscious. In 2011, in Chamber of Commerce v Whiting, Arizona state laws were upheld.

The court can also be seen to be conservative in the sense that it does not want to be active. It seeks to exercise judicial restraint. Its present day docket of c 75 is half that of the liberal activist Warren Court. Chief Justice Roberts particularly does not want to see the court embroiled in “political” issues. In Hedges v Obama in 2013, the court upheld the National Defense Authorization Act which allows indefinite detention without trial of US citizens on alleged terrorist connections.

However, the rulings of the court and the opinions of the Court would suggest that it should not be labelled as conservative. The 2011-12 term provides clear examples of the way in which the court can be deemed to upheld liberal causes. US v Jones prevented GPS tracking without a warrant supporting 4^th amendment privacy rights. Maples v Thomas and Lafler v Cooper supported 6^th Amendment rights to a lawyer. Arizona v US and National Meat Association v Harris both supported federal pre-emption over states’ rights. Clearly these rulings would suggest that the court cannot be labelled as conservative.

It should be noted that the justices do not always vote in a political manner. Many of the rulings are unanimous such as US v Jones. The conservative troika of Scalia, Thomas and Alito supported this liberal cause in US v Jones. Similarly, liberals may join with conservatives as was the case with Sotomayor and Ginsburg in Knox v Service employees International Union which curbed union spending.

These facts would suggest that the court judges each case on its merits and justices should not be pigeonholed as liberal or conservative; neither should the court.

There are many constraints upon the court too which prevent from being conservative. It is an appellate court. It must wait for cases to come before it. Hence there have been no rulings on the Patriot Act because no cases have reached the Court. It is bound by the wording of the Constitution. The Court cannot simply rule on a personal political whim. Their opinions are subject to scrutiny. The justices respect the constitution and previous rulings or precedents. US v Katz was cited as part of the justification for US v Jones last year which explains this liberal ruling.

Chief Justice Roberts seems to exercise a degree of leadership in ensuring that the Court is not perceived to be an adjunct of the conservatives. His swing vote in NFIB v Sebelius was indicative of his attempts to steer the Court away from political controversy and accusations of conservative bias which followed the Rehnquist Court ruling of Bush v Gore.

Consequently, it would seem inappropriate to label the Court as conservative. Cases such as FEC v Citizens United which opened the floodgates to an unprecedented avalanche of corporate donations to political campaigns may be cited as a sign of a conservative bias but there are plenty of other cases which reveal a liberal tendency such as Boumediene v Bush. Of the 75-80 cases each year, only around 15 will be 5 - 4 splits. To label the court ten as conservative is a shoddy and superficial analysis.