Judging Justices

In recent years the Supreme Court has appeared to suffer ideological schizophrenia, simultaneously upholding Roe v. Wade, striking down congressional term limits, and overturning government affirmative action programs. Pundits may throw around such terms as conservative or centrist to describe the current Court, but the Washington, D.C.- based Institute for Justice has attempted a more systematic analysis of the justices' attitudes toward individual liberty.

Institute Vice President Clint Bolick and Staff Attorney Scott Bullock examined dozens of opinions from the 1993 to 1995 terms; during that time, eight of the current nine justices have been on the court. (Associate Justice Stephen Breyer joined in 1994.) Their study, "State of the Supreme Court: The Justices' Record on Civil and Economic Liberty," identifies "26 cases that presented the Supreme Court with issues of fundamental individual liberties and the proper limits of government power." Among the issues the Court examined in these cases were asset forfeiture, campaign spending limits, commercial speech, punitive damages in civil lawsuits, and voting rights. As a concession to the conventional wisdom, Bolick and Bullock separated cases that involved questions of civil liberties from those involving economic liberties. They then determined whether the Court's decision in each case supported individuals or the state.

In 19 cases, or 73 percent of the time, the Court backed individual liberty. Yet, notes the study, "the Court is precariously balanced." Eleven of the pro-liberty rulings (and four of the cases that were anti-liberty) were decided by a 5-to-4 vote. The most libertarian member of the Court is Anthony Kennedy, who sided with individuals in 22 of the 26 cases. The two Clinton appointees, Ruth Bader Ginsburg and Stephen Breyer, were the least likely to defend individual liberty. Ginsburg voted against the government only 10 of 26 times; and of the 20 cases in which he was involved, Breyer cast only seven pro-liberty votes.

Bolick calls the current lineup of justices "the best Supreme Court from a libertarian perspective we have seen in our lifetime. But the shift of one vote could lurch the Court abruptly from [its] pro-liberty perspective." With rumors abounding that Associate Justice Sandra Day O'Connor (77 percent pro-liberty) and Chief Justice William Rehnquist (58 percent) may retire before the end of Bill Clinton's second term, Bolick says, "very much is at stake" in the choices the president may make to fill any vacancies.