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Observations of a patriotic progressive historian, media critic & former journalist


  • By the author of The Conservative Resurgence and the Press: The Media’s Role in the Rise of the Right and of Journalism at the End of the American Century, 1965-Present. A former journalist with a Ph.D. in journalism, history and political science, McPherson is a past president of the American Journalism Historians Association, a board member for the Northwest Alliance for Responsible Media, and a professor of communication studies at Whitworth University.

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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.

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7 Responses to “The activist conservative Supreme Court and its contradictions”

  1. I like. 🙂

    On the larger point, that the Court has been conservative for a long time, I’d agree. As many have said before, an activist judge is merely a judge making a ruling you don’t like. 😛

    But I do have a question for you, how much weight do you put to the statement that “four of the five most conservative judges who have served since 1937 are on the court today”

    I read the article and I’ve heard that quote thrown around, but frankly it sounds too easy to be true. It just sounds like a political TV commercial fact that sounds too horrible to be true, and really isn’t.

    Even if it is completely true, is it just possible that people’s definitions of Liberal and Conservative have changed a lot? I remember Scalia once saying that if the Court is a political body it has to move either left or right. If the population has been moving right (I said if) isn’t the appointment process supposed to reflect that?

    If extremely liberal judges aren’t being appointed any more, is that a failure of liberal politicians, or a victory of conservatives in the great “battle of ideas” in that the majority of people don’t want liberal judges?

    Heh, sorry, I realize those are kinda deep question, but you did make the post. 🙂

  2. James McPherson said

    Great questions, I think, so I’ll offer my views. I’m not enough of a legal historian to judge the validity of the post-1937 rankings, and think they should be viewed as more illustrative than definative. As for the Scalia comment, I’d tend to agree with him (as much as it pains me to say that)–if you accept the premise that the court is a political body.
    Frankly, I do think the court is a political body, despite its own occasional claims and the alleged desires of many conservatives to the contrary. One of my favorite examples is the 1931 First Amendment case of Near v. Minnesota (prohibiting prior restriant), which I don’t think would have been decided as positively a few years earlier during WWI or maybe a few years later during WWII (or maybe today, with the current court, for that matter).
    And yes, the country’s politicians have become increasingly conservative, so perhaps the court should reflect that–but if conservative presidents get to appoint the types of conservatives we now have, then a Democratic president elected by a healthy majority of Americans should also be able to appoint who he wants..
    The thing is, I’m not sure that the nation’s people–unlike its politicians–have become more conservative. Regardless, if Obama is a liberal like some Republicans like to claim, then that would suggest the country is becoming more liberal–and therefore, under the argument you raise, the court should reflect that shift.
    Perhaps more relevant, I think, is that the few citizens who do get passionately involved tend to be more easily motivated by single-issue knee-jerk issues. I think that inflammatory single-mindedness distorts the system as a whole.
    The current reliance of politicians and media on polls adds to the distortion. For example, conservatives say “the people” lost because Dems passed a health care bill that “most Americans don’t like.” But they ignore the fact that large numbers of those of us dislike it not because it goes too far, but because we think it doesn’t go nearly far enough.
    Back to the main issue, in short (way too late for that, I know), I think conservatives are getting exactly what they want from the court–and what they’ve been saying for some time that they don’t want (and what they don’t want progressives to get). Not that hypocrisy is unique to one side, of course.
    Pardon the lengthy response. But thanks for the thoughtful questions that prompted it.

  3. “I’m not enough of a legal historian to judge the validity of the post-1937 rankings, and think they should be viewed as more illustrative than definative.”

    Ha! Me neither. 😛 Which is why I suspect the numbers, all I really know about them is that they were probably all older white guys. Outside of that, any statistic can probably be made up to prove a point, and as hard as it is to describe the political opinions of a person today, ranking people on their political opinions 70 years ago seems to be inherently difficult if not impossible. I’m probably kicking a dead horse by now, but for something as inherently subjective as this, I’d be much more comfortable having a historian tell me “this is the most conservative court we’ve ever had” than get a solid number.

    “Regardless, if Obama is a liberal like some Republicans like to claim, then that would suggest the country is becoming more liberal–and therefore, under the argument you raise, the court should reflect that shift.”

    Oh! But contraire! And I don’t want to get yelled at for brining up Rush Limbaugh, but he did have a rather intelligent point about this. During the election he went on a rant saying that Obama was a blank slate that liberals were foolishly painting all their hopes on (he didn’t stop to realize that conservatives were painting all their fears on him too, alas, he is a narrow sighted). Obama was never as evil or socialist or Hitler-ish as the Right portrayed him, but he was never as Liberal as the Left hoped. He said he would be a centrist and was post partisan. And that’s exactly who he’s trying to appoint, a centrist with a noted and oft-repeated story of bringing post-partisanship to politically segregated school. People voted for Obama because he wasn’t a crazy conservative and promised to lead the country away from Bush policies. If America really wanted a staunch liberal Democrat, John Kerry or Hillary Clinton would have won in a landslide. He’s enough of a moderate that I, a libertarian, actually like the guy. If I like the guy, he ain’t your average liberal. (no offense intended of course)

    “Perhaps more relevant, I think, is that the few citizens who do get passionately involved tend to be more easily motivated by single-issue knee-jerk issues.”
    God knows that’s true. *groans*

  4. James McPherson said

    “Oh! But contraire! … Obama was a blank slate that liberals were foolishly painting all their hopes on (he didn’t stop to realize that conservatives were painting all their fears on him too, alas, he is a narrow sighted).”
    Actually I don’t think we disagree here. Note my perhaps-too-subtle “if” in the previous statement. I agree with Rush on his point (and you know I hate saying that), and with you on both sides of it.
    And the key point remains–if Obama represents the majority that elected him, and if the court is a political body, then his choice should be like him (and therefore like most voters–though neither Rush nor I will like the end result). Thanks again.

  5. […] Of course Graham is wrong in terming Kagan a liberal. Like every new appointee for decades, she will be more conservative than the justice she replaces (http://www.kansascity.com/2010/07/03/2061326/conservative-trend-evident-in.html), doing little or nothing to continue the court’s activist slide to the right. (https://jmcpherson.wordpress.com/2010/05/12/the-activist-conservative-supreme-court-and-its-contradic…) […]

  6. […] get over it when the “evil genious” quickly rejoins the reactionary side of the most conservative Supreme Court in […]

  7. […] One important difference, though: Romney’s his Supreme Court choices would likely make the most conservative Supreme Court in history even […]

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