# Why is SCOTUS considered conservative? **URL:** \ **Category:** Great Debates\ **Created:** [June 6, 2003, 8:34pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170 "2003-06-06T20:34:28Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![kjckjc](https://avatars.discourse-cdn.com/v4/letter/k/e36b37/32.png) [@kjckjc](https://boards.straightdope.com/u/kjckjc)\ **Post date:** [June 6, 2003, 8:34pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/1 "2003-06-06T20:34:28Z")
It was a toss-up between here and IMHO, and since I am going to use the a-word and r-word (abortion and religion), I will just stick it here and then have it moved if needed. IANAL, and have not read a great majority of SCOTUS decisions, but almost every reference to them or decisions they are expected to make refer to them as “the current conservative Supreme Court” etc. What is the basis for this? From what I can tell from some of their decisions, they are a) pro-choice, b) pro-humanist to the absolute removal of mention of religion (well Christianity anyway) in any public sector, and c) see the Constitution as a very rough draft that is to be interpreted as loosely as they want. These don’t strike me as traditional conservative views. I have no opinion on whether they are or not, but would like to form one with a informed view, and you are the most informed people I know. If everyone but me can clearly see why people think that they conservative, then there is no debate and this should be moved to IMHO. Thanks ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [June 6, 2003, 8:46pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/2 "2003-06-06T20:46:35Z")
It’s all relative. Compared to the Warren Court, the current court is a bunch of stonehearted conservatives. Compared to the Pre-New Deal court, they’re a bunch of fuzzyheaded liberals. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [June 6, 2003, 9:10pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/3 "2003-06-06T21:10:11Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*It’s all relative. Compared to the Warren Court, the current court is a bunch of stonehearted conservatives. Compared to the Pre-New Deal court, they’re a bunch of fuzzyheaded liberals. \*\* 6 of the 9 justices were appointed by Republicans. ---
**Author:** ![astorian](https://avatars.discourse-cdn.com/v4/letter/a/ad7895/32.png) [@astorian](https://boards.straightdope.com/u/astorian)\ **Post date:** [June 6, 2003, 9:53pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/4 "2003-06-06T21:53:21Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*6 of the 9 justices were appointed by Republicans. \*\* Yes, but Republicans regularly make appopintments to the Court who turn out to be far more liberal than expected (William Brennan, Harry Blackmun, John Paul Stevens, David Souter). Somehow, Democrats never seem to make the mistake of accidentally appointing conservatives (not since FDR appointed Felix Frankfurter, anyway). ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 6, 2003, 11:14pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/5 "2003-06-06T23:14:21Z")
> [@](#): > > \*Originally posted by astorian \* > \*\*Yes, but Republicans regularly make appopintments to the Court who turn out to be far more liberal than expected (William Brennan, Harry Blackmun, John Paul Stevens, David Souter). Somehow, Democrats never seem to make the mistake of accidentally appointing conservatives (not since FDR appointed Felix Frankfurter, anyway). \*\* What about Whizzer White? In general, the six-man majority on the court are politically conservative, though their jurisprudential philosophies vary significantly. (I refuse to try to characterize them on the latter basis.) ---
**Author:** ![Earl\_of\_Sandwhich](https://avatars.discourse-cdn.com/v4/letter/e/91b2a8/32.png) [@Earl\_of\_Sandwhich](https://boards.straightdope.com/u/Earl_of_Sandwhich)\ **Post date:** [June 6, 2003, 11:18pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/6 "2003-06-06T23:18:39Z")
Blalron writes: “6 of the nine justices were appointed by Republicans.” Actually, seven. Everyone except Ginsburg and Breyer is a Republican appointee. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [June 7, 2003, 11:37am UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/7 "2003-06-07T11:37:58Z")
Basically, they are not really predictable on Constitutional decisions, but when Decision 2000 came, it fell along party lines. ---
**Author:** ![Earl\_of\_Sandwhich](https://avatars.discourse-cdn.com/v4/letter/e/91b2a8/32.png) [@Earl\_of\_Sandwhich](https://boards.straightdope.com/u/Earl_of_Sandwhich)\ **Post date:** [June 7, 2003, 5:57pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/8 "2003-06-07T17:57:15Z")
adaher writes: “Basically, they are not really predictable on Constitutional decisions, but when Decision 2000 came, it fell along party lines.” Except that Justice Stevens and Justice Souter, both Republican appointees, sided with Al Gore. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 7, 2003, 7:01pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/9 "2003-06-07T19:01:52Z")
Here’s my view on it, and I think the voting patterns bear this out: Hard-line conservative: Rehnquist, Scalia, Thomas (the three most conservative justices at least since the Four Horsemen, in fact) Moderate-to-conservative: Kennedy, O’Connor (generally more moderate than conservative) Moderate-to-liberal: Souter, Breyer (Breyer’s an admin law guy, and doesn’t easily fit into the ideological categories) Liberal: Ginsburg, Stevens (but nowhere near as liberal, jurisprudentially, as Brennan, Douglas, or even Warren) Obviously whether a Justice seems liberal or conservative depends on large part on the facts of a given case, or on the area of law. Additionally, as noted previously on this board, there’s a difference between liberal/conservative politically or philosophically and liberal/conservative as a judge. Being liberal politically doesn’t always translate to judicial activism–see Ginsburg or Felix Frankfurter. And being conservative politically doesn’t always translate to judicial restraint–see Scalia or Oliver Wendell Holmes. I’m trying to finish a paper on stealth Supreme Court nominations at the moment–when it’s done, I’ll break out the Supreme Court Compendium and show you how each Justice has ruled on various issues over their tenure on the court. That’s a better indicator than Election 2000. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 7, 2003, 7:07pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/10 "2003-06-07T19:07:10Z")
First, this statement by **adaher** : > [@](#): > > Basically, they are not really predictable on Constitutional decisions No offense intended, but that’s for the most part flat wrong. Given a particular pending decision, most people who’ve studied the Rehnquist Court will be able to tell you pretty much exactly how it’ll come out most of the time, down to the split in the justices and perhaps even who’ll be assigned the majority opinion and who’ll write dissents. And this, by **astorian** : > [@](#): > > Yes, but Republicans regularly make appopintments to the Court who turn out to be far more liberal than expected (William Brennan, Harry Blackmun, John Paul Stevens, David Souter). Somehow, Democrats never seem to make the mistake of accidentally appointing conservatives (not since FDR appointed Felix Frankfurter, anyway). Man, you should _really_ know better by now. I thought I disabused you of this silly generalization a couple years ago. That post to follow. ---
**Author:** ![kjckjc](https://avatars.discourse-cdn.com/v4/letter/k/e36b37/32.png) [@kjckjc](https://boards.straightdope.com/u/kjckjc)\ **Post date:** [June 7, 2003, 7:14pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/11 "2003-06-07T19:14:18Z")
Very helpful all, thanks. As I said, I don’t know their politics very well and I was looking for a bit of help. And you gave it. Once again, thanks. On a side note, I was aware of the presidents that appointed them, but I wasn’t sure it was a good indicator. After all, GWB is fairly conservative, but it looks as if he would have to nominate a pretty liberal activist judge (if the need arose) just to get a nomination vote let alone a confirmation. I wasn’t sure if any of the sitting judges were “compromise” nominees appointed in a year the congress was controlled by the party opposite of the president. Thanks ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 7, 2003, 7:21pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/12 "2003-06-07T19:21:04Z")
From [**astorian’s** thread](http://boards.straightdope.com/sdmb/showthread.php?threadid=36374) in August 2000: > [@](#): > > Hell, if we’re gonna talk about this, let’s do it right. > > In his OP, astorian has made the following statements: > > [ul] > [li]Supreme Court justices, if they shift, always shift to the left.[/li][li]Supreme Court justices “often turn out more liberal than expected.”[/li][li]Seemingly conservative justices turn out, once appointed, to have “evolved into pinkos.”[/li][li]Democrats “are almost never disappointed by their Supreme Court nominees.”[/li][li]The last Democratic appointee to turn out more conservative than expected was Felix Frankfurter (in 1939).[/li][/ul] > > Now, the first sentiment is hyperbolic: By naming Felix Frankfurter as a rightward-shifting justice, astorian’s implicitly saying that since Frankfurter, Democratic appointees to the High Court have been more liberal than Republican appointees have been conservative. Right? Well, let’s see. > > First, it should be noted that astorian’s characterization of Frankfurter as veering right is not entirely accurate–which is the trouble with having a strict liberal/conservative dichotomy. Frankfurter was nominated by FDR as a staunch New Dealer, and this he proved to be. His overriding judicial philosophy was that the legislature, not the judiciary, should make laws and set policy; thus, he backed much of the New Deal’s social and economic legislation. In later years, however, his minimalist approach to the bench caused him often to break with other New Dealers. In short, he broke with his personal beliefs to act as best he could as an impartial agent of the Constitution: > > > [@](#): > > > > Thus, nothwithstanding his abhorrence of capital punishment, he could not bring himself to provide the necessary fifth vote to save Willie Francis, a teenage Louisiana black, from a second trip to the electric chair…Frankfurter felt bound by what he viewed as the commands of the Federalist division of powers–in spite of his outcry to Justice Burton, whose strong dissenting opinion he had seen: “I have to hold on to myself not to reach your result.” Yet extrajudicially, he had used all of his considerable influence–unsuccessfully–in trying through powerful friends to persuade the governor to commute the sentence. (Henry Abraham, Justices and Presidents, 2nd ed., p221) > > Similarly, he broke with the majority on civil liberties issues; voting, for instance, in favor of a West Virginia statute compelling children to salute the American flag. The best summary of his career on the bench comes from his dissent on _Baker v. Carr_, a redistricting case: > > > [@](#): > > > > There is not under our Constitution a judicial remedy for every political mischief. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives. > > To sum up, then, Frankfurter isn’t easily described as either liberal or conservative–he was a classical noninterventionist, and one who served FDR’s policy needs perfectly. What happened was that under the Warren Court, the Supreme Court became much more of an instrument of social change–presuming to be guided by, or to guide, public opinion itself, with minimal legislative cues. This was antithetical to Frankfurter’s judicial philosophy, and so he battled against activist justices with whom he privately agreed–eschewing not their beliefs but the activism itself. > > Now then. Let’s use Roosevelt’s appointees as a whole as the beginning of the modern Supreme Court era, and let’s see what we’ve got _vis a vis_ individual ideologies and the expectations thereof. (The starting point is largely arbitrary; if anyone wants, I’ll take it back to Holmes, the first appointee of the twentieth century.) > > There have been thirty-five justices appointed since Franklin Roosevelt took office (this counts Rehnquist twice, once as associate justice, in 1971, and then in 1986 as chief justice). Nineteen of them have been appointed by Democrats (with thirteen of the nineteen coming from FDR and Truman, and nine from FDR alone), and sixteen by Republicans (including eleven straight before Clinton took office). > > Right there you can see a pattern: until Clinton, all recent justices–Burger, Blackmun, Powell, Rehnquist, Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas–had been Republican appointees…no wonder there’s a perception that only Republican justices switch ideologies, considering the human tendency to focus on recent history! > > I’ll examine each of the thirty-five, but first I’ve got some really good data about the twenty-four nominations from Earl Warren (1953) through Clarence Thomas (1991), including the failed bids of two Nixon appointees (Haynsworth and Carswell), Abe Fortas’ unsuccessful nomination for Chief Justice, and the Bork nomination: > > The Supreme Court Compendium (1994), a statistical resource compiled by Congressional Quarterly Press, lists the perceived ideology of each of these nominees at the time of their nomination (derived, they say, “from a content analysis of editorial judgments in the _New York Times_, _Washington Post_, _Chicago Tribune_, and _Los Angeles Times_.”) Each justice is rated from 0 to 1, with 0 being the most conservative and 1 the most liberal. Keep in mind that we’re dealing in this period with nineteen Republican appointees (including Haynsworth, Carswell, and Bork), and only five Democratic appointees (including Fortas twice). Here are the findings, with the nominee’s name, the year they were nominated, the president who nominated them, and their indice of perceived ideology. Remember, the closer the indice is to 1, the more liberal they were perceived to be at the time of their nomination. > > Earl Warren, 1953 (Eisenhower) .75 > John Harlan, 1955 (Eisenhower) .88 > William Brennan, 1956 (") 1.00 > Charles Whittaker, 1957 (") .50 > Potter Stewart, 1958 (") .75 > Byron White, 1962 (Kennedy) .50 > Arthur Goldberg, 1962 (") .75 > Abe Fortas, 1965 (Johnson) 1.00 > Thurgood Marshall, 1967 (") 1.00 > Abe Fortas, 1968 (") .85 > Warren Burger, 1969 (Nixon) .12 > Clement Haynsworth, 1969 (") .16 > G. Harrold Carswell, 1970 (") .04 > Harry Blackmun, 1970 (") .12 > Lewis Powell, 1971 (") .17 > William Rehnquist, 1971 (") .05 > John Paul Stevens, 1975 (Ford) .25 > Sandra O’Connor, 1981 (Reagan) .48 > William Rehnquist, 1986 (") .05 > Antonin Scalia, 1986 (") .00 > Robert Bork, 1987 (") .10 > Anthony Kennedy, 1987 (") .37 > David Souter, 1990 (Bush) .33 > Clarence Thomas, 1991 (") .16 > > Well. Lots of interesting things here. Let’s see: > > [ul] > [li]_All_ of Eisenhower’s appointees were perceived to be moderate to liberal. This includes Brennan, one of only three men to rate a full 1–the most liberal you can get. astorian, please remove him from your list of justices who proved to be surprisingly liberal. Ditto Warren, in fact, who was a solid .75. Bottom line: nobody nominated by Eisenhower was expected to be conservative, even though Ike himself was a Republican.[/li][li]In fact, no nominee on this list was perceived to be conservative before being appointed until Warren Burger in 1969. After that, every nominee was seen as right-leaning through the Bush presidency. Further, most were seen as _very_ conservative, the exceptions being O’Connor, Kennedy, and Souter. I don’t have the numbers on Ginsburg or Breyer, but I’d bet that neither were perceived to be as liberal as the Nixon/Ford/Reagan nominees were conservative–I’d say no higher than .75 for either.[/li][li]Nobody’s gone right since Felix Frankfurter, hmm? Well, correctly or not, Abe Fortas was seen by the contemporary press as less liberal when standing for the chief justiceship than upon his initial appointment to the bench just three years before–from 1.00 to .85. Conversely, Rehnquist’s rating of .05 didn’t change at all in the fifteen intervening years between nominations.[/li][li]The nature of Eisenhower’s appointees pretty much invalidate your explanation of Whizzer White, astorian. He was viewed as a moderate when taking the bench–more conservative than the Republican nominees preceding him–and proceeded, especially in later years, to vote closely with conservatives like Rehnquist on most issues. He most definitely was not indicative of a mainstream Democratic ideology in 1960, especially considering that stalwart liberals William Douglas and William Brennan were nominated _before_ White, and stayed very much to his left every year thereafter.[/li][/ul] > Unfortunately, I don’t have hard data about the perception of Roosevelt and Truman appointees–Black, Reed, Frankfurter, Douglas, Murphy, Stone, Byrnes, Jackson, Rutledge, Burton, Vinson, Clark, and Minton–at the time of their nomination. If someone wants me to, I can sketch out a synopsis of each of their appointments, and the quality of the opposition. > > This post’s long enough, however, so I’ll close with one more statistical salvo: Liberal/conservative voting tendencies of every justice between 1953 and 1991. This excludes Murphy, Stone, Byrnes, and Rutledge, who finished their terms prior to 1953, and Thomas, Ginsburg, and Breyer, who served afterwards. (I feel it’s a safe statement, though, to say that Thomas was nominated as a conservative and has more than amply filled that role, and that Ginsburg and Breyer were nominated from the center-left and have not strayed. Keep in mind also that Souter has moved distinctly to the left since his initial session, and is one of two modern justices–Harry Blackmun is the other, mostly because of his changed stances on abortion and the death penalty–who I feel _have_ become more liberal than the initial expectation.) > > The Congressional Quarterly publication analyzed each position by each justice from 1953 to 1991, and gauged those positions on a liberal-conservative scale. They broke the issues down into eleven classifications–criminal procedure, civil rights, First Amendment, due process, privacy, attorneys, unions, economics, federal taxation, federalism, and judicial power–as well as a blanket “civil liberties” category which encompasses criminal procedure, civil rights, First Amendment, due process, privacy, and attorney issues. > > Here’s their definition of what constitutes a “liberal” position: > > > [@](#): > > > > The term liberal represents the voting direction of the justices across the various issue areas. It is most appropriate in areas of civil liberties…where it signifies pro-defendant votes in criminal procedure cases, pro-women or -minorities in civil rights cases, pro-individual against the government in First Amendment, due process, and privacy cases, and pro-attorney in attorneys’ fees and bar membership cases. In takings clause cases, however, a pro-government/anti-owner vote is considered liberal. The use of the term is perhaps less appropriate in union cases, where it represents pro-union votes against both individuals and the government, and in economic cases, where it represents pro-government votes against challenges to federal regulatory authority and pro-competition, anti-business, pro-liability, pro-injured person, and pro-bankruptcy votes. In federalism and federal taxation, liberal indicates pro-national government positions; in judicial power cases, the term represents pro-judiciary positions. > > Whew. Then they’ve got a helluva lot of numbers. Let me give you their summary of civil liberties positions, with a few of my comments thrown in: > > > [@](#): > > > > In the combined civil liberties cases, Justice Douglas [a Roosevelt appointee] is the most liberal of the justices, supporting that position almost 92 percent of the time. Not far behind is Justice Goldberg, who supported the liberal position nearly 90 percent of the time. A second rung of liberals consists of Justices Marshall, Fortas, Brennan, and Warren, all of whom supported the liberal position approximately 80 percent of the time. [and all of whom were expected to be liberal upon their appointments, as I’ve demonstrated] Justice Black is the remaining liberal of the group, with almost three-quarters of his votes in the liberal direction. [they later go on to note that Hugo Black became “markedly more moderate following the 1963 term”] A plurality of the justices are moderate on civil liberties issues. This group includes Frankfurter, Jackson, Burton, Clark, Minton, Harlan, Whittaker, Stewart, White, Blackmun, Powell, and Stevens. Reed, Burger, Rehnquist, O’Connor, Scalia, Kennedy, and Souter rank as conservative in civil liberties cases. [what were you saying in your OP about Kennedy and O’Connor, astorian?] In economics cases, the same tendencies hold, with some exceptions. Clark, for instance, is decidedly more liberal in economic matters than in civil liberties concerns, while Marshall approaches the moderate camp. > > So there you are. Of those appointed from 1953-1991 who were perceived upon nomination to be liberal, Harlan and Stewart turned out relatively moderate, as did every Truman appointee (Burton, Vinson, Clark, Minton) and two Roosevelt appointees (Frankfurter and Jackson). One justice nominated by FDR, Stanley Reed, actually proved to be conservative for at least his last four years on the bench. The rest–Douglas, Goldberg, Marshall, Fortas, Brennan, Warren, and for the most part Black–were indeed liberal on the bench. > > Of those perceived initially to be moderate, Whittaker stayed true to form, while White veered a little rightward toward the end of his career (I’ve got stats on that, if you want them). > > And of those perceived at the beginning to be conservative, Powell and Stevens turned out to be moderates, and Blackmun and Souter turned out to be liberals. The rest–Burger, Rehnquist, Kennedy, O’Connor, Scalia, and Thomas–have stayed pretty much true to form. (Not to mention that O’Connor’s initial rating was .48–it could be argued that she’s been more conservative than expected.) > > Any questions? I’d amend that post to say that John Paul Stevens _has_ become more liberal over the years, a more gradual version of Blackmun’s shift. Other than that, I stand by the data above. Note that it directly contradicts your assertion that Brennan turned out more liberal than expected. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 7, 2003, 7:37pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/13 "2003-06-07T19:37:04Z")
Let me comment once more on something **kjckjc** just said, since it bears directly on the paper I’m writing: > [@](#): > > After all, GWB is fairly conservative, but it looks as if he would have to nominate a pretty liberal activist judge (if the need arose) just to get a nomination vote let alone a confirmation. I don’t believe that’s true. I offer you, first, Anthony Kennedy and David Souter, neither of whom were thought to be liberal activists upon their nomination, and both of whom were fairly upfront about their judicial philosophies. Souter even criticized the _Miranda_ decision, the _Gregg_ decision, and certain gender discrimination decisions during his testimony; Kennedy did the same when he said he thought the Warren Court walked (and perhaps crossed) the line of judicial activism. Both were confirmed pretty easily. Let me next offer you the following people: Harris Hartz, Edith Brown Clement, Barrington Parker, Sharon Prost, William Riley, Roger Gregory, Michael Melloy, Terrence O’Brien, Jeffrey Howard, Richard Clifton, Julia Smith Gibbons, D. Brooks Smith, Reena Raggi, Michael McConnell, Dennis Shedd, John Rogers, Timothy Tymkovich, Jeffrey Sutton, William Steele, Jay Bybee, Lavenski Smith, and Deborah Cook. All Bush appointees, all Republican and presumably conservative, all confirmed to seats on federal courts of appeals. As Charles Schumer said in distinguishing Reena Raggi from Priscilla Owen: > [@](#): > > [Raggi] is exactly the kind of nominee we should be seeing from the Administration. She’s an experienced and well-regarded federal district court judge for whom not a single significant red flag has been raised. She’s known to be tough on crime but fair to litigants. She is conservative but does not bring an ideological agenda to the bench. So I don’t think it’s fair to say that the Senate will accept only liberal activists; rather, the Democrats are trying to avoid apparent _conservative_ activists, especially given how evenly split this country seems to be right now between both parties. I’ll add that I don’t necessarily oppose Priscilla Owen. But, at the risk of revisiting this debate, the trouble comes when the President nominates people like Miguel Estrada who have no significant public record demonstrating their writing or reasoning style, and who prove singularly uncommunicative at their confirmation hearing (and granted, the Democrats could have done a _much_ better job of asking him the right questions). The Senate has no duty, and should have no duty, to confirm judicial nominees that to them are jurisprudential ciphers. Lastly, I’d note that there’s a big difference between appellate court nominations and Supreme Court nominations. It won’t be until Bush names his first High Court nominee that we’ll be able to tell how obstructive the current Senate is likely to be to explicitly (or implicitly) conservative candidates. ---
**Author:** ![astorian](https://avatars.discourse-cdn.com/v4/letter/a/ad7895/32.png) [@astorian](https://boards.straightdope.com/u/astorian)\ **Post date:** [June 8, 2003, 6:28pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/14 "2003-06-08T18:28:19Z")
Yes, Gadarene, I KNOW you thought you’d disabused me of my silly notions. You thought wrong. Erisenhower was never an ideologue, and rarely took political ideologies into consideration when making court appointments. That was foolish of him. He acknowledged that himself later, when he noted that the two biggest mistakes of his presidency were still sitting on the Supreme Court (Earl Warren and William Brennan). Brennan’s radical ideology was not a “surprise,” strictly speaking… or at least, he WOULDN’T have been a surprise to anyone who paid attention. Problem is, in those days, Republicans almost never DID pay attention. Eisenhower made his nominations based on geography as much as anyone else (in his mind, there was a “Southern Seat” on the court, a “Northern urban Catholic” seat, and so on). Conservative columnist James J. Kilpatrick was one of the few observers in the 1950’s who predicted, based on Brennan’s record, just how he’d turn out. Years later, an amused Brennan would “congratulate” Kilpatrick for being the only one (apparently) who’d actually bothered to read any of Brennan’s lower-court decisions. Presumably, if Eisenhower had known how much power the Warren Court was going to acquire, he might have done things a bit differently. But like most earlier Presidents, he’d always assumed that the Judiciary was the least significant branch of the federal government. Republicans were VERY late in realizing how powerful the High Court could be, and later still in taking ideology seriously. But by that time, it was far too late to undo most of the damage done by Warren, Brennan & Co. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 8, 2003, 6:33pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/15 "2003-06-08T18:33:24Z")
And what’s your point? That Republicans weren’t paying attention back then? Do you think they’re paying attention now? If so, why do you use the present tense in your first post in this thread? Are you contesting the notion that, for example, William Rehnquist and Nino Scalia are far more conservative than Ruth Bader Ginsburg and Stephen Breyer are liberal? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [June 8, 2003, 8:35pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/16 "2003-06-08T20:35:14Z")
> [@](#): > > \*Originally posted by Gadarene \* > **And being conservative politically doesn’t always translate to judicial restraint–see Scalia or Oliver Wendell Holmes.** Holmes is an odd choice for both the conservative mantle and the activist tag, dontchathink? After all, the best-known dissent of the Great Dissenter was his opinion in _Lochner v. New York_, which (1) many folks (myself included) consider the most eloquent defense of judicial restraint ever put to paper, and (2) was written in opposition to conservative activism (namely, the overturning of a New York law regulating the workday for bakers). ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [June 9, 2003, 7:27pm UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/17 "2003-06-09T19:27:15Z")
> [@](#): > > \*Originally posted by kjckjc \* > **From what I can tell from some of their decisions, they are a) pro-choice, b) pro-humanist to the absolute removal of mention of religion (well Christianity anyway) in any public sector, and c) see the Constitution as a very rough draft that is to be interpreted as loosely as they want.** I’d say all three of these observations are incorrect, **kjckjc** , as applied to the present Court – however, the Court does respect the precedent of past decisions which had created a preexisting pro-choice, pro-“huamnist” bias. The Court is by no means pro-choice. IIRC, the most recent serious abortion case the Court has heard was _Casey_ in 1992. There was no majority opinion; a three-justice plurality controlled. The plurality said, essentially “If we were writing on a clean slate, we’d say abortion is not protected, but, given _Roe_, we will follow its precedent.” However, _Casey_ effectively overruled, uh, **City of Akron** (IIRC), which struck down “informed” consent laws which require doctors to present a series of horror stories to a woman before getting an abortion. Since **Casey** abortions have gotten considerably more difficult for most women to obtain – laws require informing the husband or parents of the woman, and it is in some circumstances a felony to give a woman a ride to an abortion clinic if she isn’t your daughter. It seems that these laws chipping away at the right to an abortion are inconsistent with _Roe_ and the pre-_Casey_ decisions; they’re acceptable under _Casey_ probably, and the Court has refused to take abortion cases since then to enforce the right to an abortion. As to the suggestion that the Court is anti-religion, I think there’s even less evidence of that. First of all, unlike abortion, the insulation of religion from public affairs is explicitly described in the First Amendment. While there are debates as to exactly what these clauses mean, no serious jurist could accept any line of reasoning that did not respect the fact that the Constitution establishes government free from religious coercion. Justice Kennedy’s opinion in _Lee v. Weisman_, however, made it considerably easier for a public institution or state legislature to impose the trappings of religion on those of us uninterested in encountering them. As to the issue of strict constructionism, I don’t see any evidence that the current Court plays fast and loose with the text – at least any more than one has to; it is, after all, a Constitution they are expounding. However, I think all the Justices on all sides of the political spectrum do a worse job that they might wish of divorcing their jurisprudence from their policy goals. OTOH, I think they all do a better job of it than most people would. –Cliffy ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 10, 2003, 1:59am UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/18 "2003-06-10T01:59:41Z")
And while we’re on the subject, let’s not forget the strictest of strict constructionists, Hugo Lafayette Black – who was hardly considered “conservative” by anybody to the right of Upton Sinclair! ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 10, 2003, 2:55am UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/19 "2003-06-10T02:55:34Z")
> [@](#): > > \*Originally posted by Cliffy \* > As to the issue of strict constructionism, I don’t see any evidence that the current Court plays fast and loose with the text . . . Indeed. Just today, the Court issued a unanimous opinion, authored, by Justice Thomas, affirming that Congress meant exactly what it said when it wrote the 1991 amendments to the Civil Rights Act. The unanimous nature of the decision is noteworthy because it _embraces_ a position that it very favorable to employment discrimination plaintiffs, and it _rejects_ a textually-unfounded position adopted by every circuit court of appeals of which I am aware _except_ the 9th Circuit. The Court occasionally plays fast and loose with precedent, but it does not play fast and loose with the text of the Constitution or the acts of Congress. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 10, 2003, 3:07am UTC](https://boards.straightdope.com/t/why-is-scotus-considered-conservative/180170/20 "2003-06-10T03:07:10Z")
Sorry, should have noted that the “textually-unfounded position adopted by every circuit court of appeals of which I am aware except the 9th Circuit” is a position that is hostile to employment discrimination plaintiffs. The Bush Admin even filed an amicus brief opposed to the plaintiff-friendly position, but it didn’t work. [http://www.supremecourtus.gov/opinions/02pdf/02-679.pdf](http://www.supremecourtus.gov/opinions/02pdf/02-679.pdf)