Yesterday I noted an unfortunate column by Slate’s Dahlia Lithwick and NYU’s Barry Friedman which claimed that Supreme Court Chief Justice John Roberts is a master “illusionist” who has hoodwinked the rubes with his uncanny legal tricks. I should have spent the same time reading UC Irvine law school dean Erwin Chemerinksy, who avoided silly metaphors and instead made the provocative and straightforward argument in the L.A. Times that “this is the most conservative court since the mid-1930s.” That’s a claim worth thinking about. Here is Chemerinsky's big assertion:
During the first years of the Roberts court, it has consistently ruled in favor of corporate power, such as in holding that corporations have the 1st Amendment right to spend unlimited amounts in independent political campaigns. For the first time in American history, the high court has struck down laws regulating firearms as violations of the 2nd Amendment and held that the Constitution protects a right of individuals to possess guns. It has dramatically cut back on the rights of criminal defendants, especially as to the exclusion of evidence gained through illegal searches and seizures under the 4th Amendment and the protections of the 5th Amendment's privilege against self-incrimination. It has greatly limited the ability of the government to formulate remedies for the segregation of public schools. It has significantly expanded the power of the government to regulate abortions.
Some of the decisions he’s referring to clearly count as conservative, but do they all? Remember that the ACLU sided with the activist group Citizens United in its landmark case, arguing that the First Amendment right to political speech trumps so-called campaign finance reform. Plenty of liberals still think Citizens United v. FEC came out wrong, of course, but it certainly means something when a liberal heavyweight such as the ACLU says the decision came out right.
As for the Second Amendment cases, a very impressive list of liberal legal scholars lined up behind the winning propositions that the Second Amendment protects an individual right to keep and bear arms (District of Columbia v. Heller) and that the 14th Amendment applies that right to the states (McDonald v. Chicago). Again, some liberals were unhappy with those decisions. Guess what? Some very high-profile legal conservatives were unhappy with them too. In fact, Justice Clarence Thomas filed a separate concurrence in McDonald in order to make a principled originalist argument that also served as a none-too-subtle critique of the majority opinion filed by his fellow conservatives.
In other words, there are divisions on the legal right that are just as important as those separating conservatives from liberals, and the same holds true for divisions on the legal left. None of that makes for simplistic op-eds painting the chief justice as an evil magician, nor does it allow for overly broad characterizations of the Supreme Court as a conservative (or liberal) monolith, but it does have the virtue of being useful information if you want to understand what’s actually going on in the courts.