A common perception is that since the Supreme Court frequently divides 5-4, it is balanced between conservatives and liberals. The vote breakdown, however, does not tell us anything about the Court's ideological breakdown. The Supreme Court has discretionary jurisdiction, and any group of nine justices will tend to choose cases that divide them because those cases are the ones that are the most legally uncertain.
On April 14, 2009, Professor Geoffrey Stone presented a talk in the Chicago's Best Ideas lecture series entitled "Obama's Supreme Court." He discussed what he thinks the makeup of the current Court really is. (Throwing the word "Obama" in the title is a good way to get people in the door.) In a series of entries on Huffington Post, he describes what follows in more depth.
First, Professor Stone served up some facts about the current Court. Seven of the nine sitting Justices were appointed by Republicans, as were twelve of the last fourteen appointees. The so-called "swing" vote on the Court has shifted from Justice Stewart to Powell to O'Connor to Kennedy, each of whom is widely considered more conservative than the last. According to an article by Professor Landes and Judge Posner, four of the current Justices are more conservative than any Justice since 1937 except Rehnquist. Finally, there are not any "full-throated" liberals like Justice Marshall or Brennan on the Court.
But what do "liberal" and "conservative" mean? According to Stone, the terms refer to the set of issues about which a judge chooses to be "activist" rather than "passivist." The term "activist" itself is very loaded; Stone uses it to refer to aggressive constitutional review of the actions of the elected branches. A liberal is activist on issues where a minority was at risk of being treated unsympathetically by the majority (such as Brown v Board of Education, criminal rights, and the rights of political dissidents) or issues where pathways of democratic change were potentially being blocked (such as the reapportionment cases and the Pentagon Papers).
Conservatism comes in three flavors, the first of which is passivism. A judicial passivist does not aggressively address any issues. This variant of conservatism formed the basis for Nixon Administration criticism of the Warren Court as activist. Passivism is not necessarily conservative or liberal, which is probably why none of the Justices appointed by Nixon actually followed it. Stone takes issue with the abdication implicit in passivism; the purpose of courts is to sometimes check the majority will.
The next variant is originalism, popularized by Justice Scalia. Stone defined originalism as fidelity to the intent of the Framers of the Constitution. (Others may define it as the public meaning of the text of the Constitution at the time it was enacted or some other variant, but the issues here are the same regardless of the definition.) In theory, the advantage of originalism, like for passivism, is its neutrality; the judge is only engaging in historical research rather than her or his own preferences. Yogi Berra said, "In theory, there is no difference between theory and practice. In practice, there is." For almost any case, not nearly enough historical information exists to uniquely specify a result. When the historical information runs out, the judge will probably assume that, since the Framers were reasonable people and so is the judge, the Framers would have agreed with what the judge thinks the result should be. A second problem with originalism is that the Framers intended for constitutional provisions to invoke broad values rather than specify particular outcomes, so using originalism as a philosophy in fact ignores the intent of the Framers.
The dominant form of conservatism is conservative activism, the parallel of liberalism above. This variant selects its own set of issues for aggressive constitutional scrutiny: restrictions commercial advertising, limitations on campaign financing, affirmative action, property regulations, and federal as opposed to state laws. Unlike for liberalism, Stone does not find any underlying commonality among these areas.
Stone contends that conservative Justices are in fact conservative activists rather than passivists or originalists. For example, in a sample of 46 non-affirmative action Equal Protection Clause cases, Justices Thomas and Scalia voted to strike down the law only twice; whereas in Bush v Gore, they struck down the recount on Equal Protection grounds, and the pair struck down 19 out of 19 regulations in affirmative action cases for violating the Equal Protection Clause. The rest of the Justices, for both the affirmative action and non-affirmative action samples, voted to strike down the law roughly half the time. Another example is Justice Rehnquist's voting pattern for free speech cases under the First Amendment. In a sample of 260 non-unanimous cases, Justice Rehnquist voted to invalidate a law for violating the First Amendment 8 percent of the time, compared with 56 percent of the time for the other Justices. That 8 percent falls into four categories: commercial advertising, corporate campaign contributions, religious speech, and Dale v Boy Scouts of America, where the Boy Scouts excluded gays. Percentages like these give us more insight into how the Justices actually operate because Justices do not sit down and decide what percentage of cases come out a certain way; rather, they decide each case individually, and the numbers are discovered after the fact. The conclusion that Stone draws is that conservative activism's lack of coherence is fundamentally political in a way that liberal activism, his preferred theory, is not.
And finally, Obama. President Obama's nominees to the Supreme Court will most likely be moderate liberals, similar to Justices Ginsburg and Breyer, rather than more forceful liberals like Justices Marshall and Brennan. The liberal Justices are likely to retire before the conservative Justices, so Obama will probably not reshape the Court much at all. It seems that conservative activism will be the guiding theory of the Supreme Court for the foreseeable future.