The activist conservative Supreme Court and its contradictions
Posted by James McPherson on May 12, 2010
Remember when conservatives said they didn’t want activist judges, back in the days when they were still able to pretend (though the claim was pretty far-fetched during most our history) that activism somehow meant liberalism? We now have pretty good evidence that the current Supreme Court, in addition to being an activist court, is perhaps the most conservative in history.
Apparently four of the five most conservative judges who have served since 1937 are on the court today, with another current justice, Anthony Kennedy, ranked No. 10. Incidentally, Clarence Thomas–whom I had previously considered to be the equivalent of a ventriloquist’s dummy for Antonin Scalia (except that wooden dummies typically come across as smarter and more expressive than Thomas), is actually ranked as more conservative than Scalia. Or anyone else who has served since 1937.
And of course the most relatively liberal John Paul Stevens is the justice who is leaving, with the largely unknowable Elena Kagan nominated by pseudo-liberal Barack Obama to take Stevens’ place on a court of contradictions. Assuming Kagan is seated, the court will have a record number of women on the court–and all of them from New York City. Her appointment means that four of the nine justices will have been appointed by Democrats, the “best” it has been for progressives for more than 40 years. Oh yeah, those damned liberal activist courts!
Except for his race, Thomas seems to be the justice who would feel most at home at a Tea Party gathering, but in fact most of today’s justices could hang out at such a gathering unnoticed (not least of which is because most tea partiers wouldn’t recognize a Supreme Court justice if they tripped over him). And the fact that the only black man on the court is its most conservative member–while the only other African American to serve, Thurgood Marshall is ranked as the least conservative since 1937–is only one current oddity of the court.
It appears that Protestants may want to start clamoring for more diversity on the court, considering that it is about to be made up of six Catholics and three Jews. NPR notes that half of the Roman Catholics who have ever served are on the court now. (The first Catholic also has the distinction of being perhaps the worst chief justice ever; Roger Taney wrote the Dred Scott decision, which some Arizonans are no doubt trying to figure out how to apply to Hispanics today).
I’ve complained in the past about how America’s leaders were more conservative than the people they pretend to serve. But as long as corporations have more political power and more interest in the process than people do, those in power will continue to benefit from an increasingly activist conservative court.