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The Roberts Court in an Era of Polarized Politics

1Washington State University, Johnson Tower 801, PO Box 644880, Pullman, WA 99164, USA, Tel.: +(509) 335-2427

2Washington State University, Johnson Tower 621, PO Box 644880, Pullman, WA 99164, USA, Tel.: +(509) 335-5260

Corresponding author: Cornell W. Clayton, Washington State University, Johnson Tower 801, PO Box 644880, Pullman, WA 99164, USA, Tel.: +(509) 335-2427

Citation Information: The Forum. Volume 10, Issue 4, Pages 132–146, ISSN (Online) 1540-8884, ISSN (Print) 2194-6183, DOI: 10.1515/forum-2013-0015, February 2013

Publication History

Published Online:
2013-02-09

Abstract

This essay examines the Roberts Court and its relationship to the Obama administration. It begins by analyzing the ways in which the Court has been structured by electoral politics over the past 40 years, arguing that the Court’s more conservative, divided, and polarized decision-making reflects the politics of the post-1968 electoral regime. It concludes by considering the impact of President Obama’s 2012 reelection, contending that there is little indication that Obama aspires to restructure the courts fundamentally or to push major new constitutional initiatives. Although Obama will undoubtedly have an opportunity to fill at least one seat on the Court in the coming years, he is unlikely to alter its ideological balance, leaving Justice Kennedy as the swing justice. Thus, while liberals can expect isolated judicial victories, Obama’s reelection does not portend an imminent shift in Court decision-making. Only time will tell, however, whether it will have longer-term consequences for American constitutional development.

Introduction

A few months before the presidential election of 2012, Chief Justice John Roberts handed President Obama a major constitutional victory by upholding the Affordable Care Act, the signature legislative achievement of Obama’s first term. Writing for a bitterly divided 5–4 Court in National Federation of Independent Business v. Sebelius (2012), Roberts agreed that the act’s central provision, a mandate requiring individuals to purchase healthcare insurance, exceeded Congress’ Commerce Clause powers, but that the mandate provision could be upheld under Congress’ taxing power instead. Roberts had apparently switched sides in the case after oral arguments, voting originally with the conservatives on the Court to invalidate the law before switching to join the four more-liberal justices to uphold it (Crawford 2012). Enraged by the betrayal, the four remaining conservative justices wrote a highly unusual joint dissent accusing Roberts of “re-writing” the act in order to save it.

Roberts’s role in Sebelius illustrates the difficulties in leading a deeply divided Court during a period of political polarization. His switch came in the context of a public rift between the Court and the president. Obama had criticized the Court in his State of the Union address in 2010 for its activism in Citizen’s United v. FEC (2010) (Silverleib 2010), which overturned congressional restrictions on campaign expenditures. Then, as the Sebelius case was pending, Obama held a press conference to warn the Court against striking-down the ACA, which, he said, would further betray conservative commitments to “judicial restraint” (Marcus 2012).

The irony of having a progressive president publicly and repeatedly chastise a conservative-led Supreme Court for judicial activism cannot be lost on anyone familiar with American judicial politics during the previous 40 years. Perhaps it was not surprising, then, that the Chief Justice felt conflicted in Sebelius; and that many saw his switch in that case as an exercise in institutional statesmanship, aimed at protecting the Court’s institutional legitimacy from the political fallout that would have followed invalidating the president’s major legislative accomplishment on partisan lines (Winkler 2012a; Tribe 2012).

Others, however, saw Roberts’ decision as abandoning conservative constitutional principles and retreating in the long-sought, New Right, constitutional revolution. John Yoo, former Deputy Attorney General during the Bush administration, complained that Roberts’ “job is not to finesse the place of the Supreme Court in the political world … but to get the Constitution right first and then defend the institution second” (Liptak 2012a).

While it is interesting to speculate about Roberts’ motives in Sebelius, it distracts from more fundamental factors that are shaping the Court’s behavior and constraining Roberts’ role as its leader. The Roberts Court, like those before it, has been shaped by the broader electoral forces that also structure the political system of which it is part. For the past 40 years, American politics, especially at the presidential level, have been shaped by a partisan electoral regime associated with the New Right Republican Party, a regime that began with the election of Richard Nixon in 1968 and solidified itself in the presidency of Ronald Reagan.

That regime is far more conservative than the New Deal regime it replaced, but it is also more divided and polarized than previous periods in American electoral history. The Roberts Court reflects those electoral politics. It too has become an increasingly more conservative institution, but at the same time its decision-making has become increasingly more polarized and divided. With five conservative-leaning justices appointed by Republican presidents, and four liberal-leaning justices appointed by Democratic presidents, the Roberts Court is now more conservative and more closely divided than any in recent history.

It is too early to tell what Obama’s decisive reelection to a second term portends for the future of American electoral politics. What is certain is that it will continue to complicate John Roberts’s role as leader of a sharply divided Court, one that will often find itself at odds with the president’s administration. Although Obama will undoubtedly have an opportunity to fill at least one seat on the Court in the coming four years, he is unlikely to alter its ideological balance, leaving Justice Kennedy as the swing justice on the Court. Thus, while liberals can expect isolated judicial victories, Obama’s reelection does not portend an imminent shift in the Court’s decision-making. Only time will tell however whether it will have longer-term consequences for American constitutional development.

The Roberts Court: Conservative, Divided, and Polarized

More than 50 years ago political scientist Robert Dahl (1957) demonstrated that the Court usually works in concert with, rather than as a counter to, the policy values and constitutional vision of the dominant electoral coalition. Dahl’s explanation was simple: since justices are appointed by party leaders, and party leaders appoint individuals who share their attitudes and values, the Court (except for short transitional periods) was “inevitably a part of the dominant national alliance.” This is not to say that the Court never behaves contrary to the will of elected majorities, but numerous studies have now shown that over time its policymaking role tends to harmonize with the movements of the elected branches (Graber 1993; Whittington 2007; Gillman 2008).

American electoral history has generally been understood as a series of relatively stable party systems or electoral regimes that rise to power, govern over some period of time, and then decline to be replaced by a new electoral order. Skowronek (1993) coined the term “political time” to distinguish the periodic or cyclical nature of electoral political history from ordinary chronological history, and used it to analyze presidential leadership by examining a president’s behavior relative to an electoral regime that was emerging, dominant, or waning. Similarly, the Court does not exist outside of political time, “but rather both helps determine political time and occupies a position within it” (Whittington 2007). Understanding the behavior of the Roberts Court thus begins by placing it within the broader context of electoral politics, and in particular with reference to the policy and values of the Republican Party (GOP) which has controlled the White House during much of the past 40 years.

It is clear looking back that beginning in the 1960s the New Deal regime, which had dominated electoral politics in the US since the 1930s, started to unravel and was gradually replaced by a new electoral order controlled mostly by the values of a more conservative GOP. The Democrat’s electoral coalition fragmented over a series of issues, especially race and civil rights (Carmines and Stimson 1989; Shafer 2003). Beginning with Nixon’s “southern strategy” in 1968, and culminating in Regan’s election in 1980, GOP entrepreneurs capitalized by bringing southern Democrats, religious-right evangelicals, and other groups into a more conservative Republican Party that became competitive, if not dominant, in national politics (Jacobson 1990; Skowronek 2010). Prior to Obama’s election in 2008, the GOP had won seven of the last ten presidential elections since 1968, compared to only two of the nine presidential elections in the previous 36-year period.1 Moreover, the GOP has controlled one or both houses of Congress for 33 of the last 44 years since 1968, compared to doing so in only ten of the 36 years prior to that time (Rosenburg 2009).

The electoral success of the GOP since 1968 accounts for the rightward drift in many areas of American public policy documented by scholars during this period (Hacker and Pierson 2005; Bartels 2008). It also impacted the federal judiciary and constitutional law. In fact, the Court was a key cleavage issue leading to the rise of the New Right. Nixon’s 1968 “law and order” campaign specifically linked rising crime rates and declining public morality to the “liberal” decisions of the Warren Court, and his promise to appoint “strict constructionists” to the Court was a major part of realigning southern electoral politics (Clayton and Pickerill 2006). GOP presidents since have used judicial appointments to advance a “judicial counterrevolution” against the New Deal constitutional order (Balkin and Levinson 2001; Tushnet 2003; McMahon 2011).

The Reagan administration in particular was critical in formulating and entrenching in the judiciary a more conservative vision of the Constitution. This was one based around a constitutional jurisprudence of “original intent” and a commitment to rein in federal regulatory power, expand protection for corporations, and reverse earlier decisions that liberalized rights in criminal Justice, abortion, affirmative action, and the separation of church and state (Clayton 1992; Johnson 2003; Tushnet 2003).

There have been 16 justices appointed to the Supreme Court since 1968: 12 appointed by Republican presidents and four by Democratic presidents.2 In the past, partisan affiliation was not always a reliable predictor of judicial ideology. President Eisenhower once famously quipped that the appointment of Earl Warren was “the biggest damnfool mistake I every made” (Sitkoff and Foner 1992). Since the 1960s, however, the two major parties have grown more ideologically coherent and more polarized. Studies of the voting behavior of members of Congress, for example, show that congressional Republicans have become more conservative and congressional Democrats more liberal than at any point in more than a century (McCarty, Poole, and Rosenthal 2006).

Similar studies also show that ideological polarization has taken place not only at the elite level but also among the general public (Gelman 2008). The ideological polarization of the parties, combined with the Court’s elevation as a cleavage issue in electoral politics, has led to a more ideologically rigorous appointment process, in which partisanship has become a more reliable predictor of a justice’s ideological behavior on the Court (McMahon 2007).

We can see the ideological polarization in judicial selection by using data gathered by Segal and Cover (2012) which estimates the ideology of each justice at the time of their appointment based on public perceptions in pre-confirmation newspaper editorials. Figure 1 combines the Segal-Cover scores of all justices appointed by a president, then shows the mean ideological score of each president’s nominees for all 12 presidents between 1937 and 2010 (a score of 0 is most conservative and a score of 1 is most liberal). Each president’s appointments (with the exception of Eisenhower), are in the expected direction, and since 1968, the mean ideological score of GOP appointed justices has been very conservative, while Democratic appointees remained liberal.

Figure 1

Ideology of Supreme court appointment by presidential administration.

Of course newspaper perceptions of a judicial nominee’s ideology at the time of their appointment may prove to be wrong once they are on the Court. Figure 2 however makes clear that the GOP’s dominance in appointing justices since 1968 has resulted in a Court that also behaves in a more conservative fashion. Using data gathered by Andrew Martin and Kevin Quinn (2002) which estimate the ideological position of each justice based on their voting behavior in each term, we calculated the Court’s mean ideological position over time, as well as the position of its mean Republican and Democratic appointees for each term between 1937 and 2011 (negative scores reflecting more liberal voting behavior and positive scores more conservative voting behavior).3

Figure 2

Ideological voting on the Supreme court.

Figure 2 then traces the ideological polarization inside the Court that followed from this selection politics. The solid black line, representing the voting behavior of the mean justice on the Court as a whole, shows that between 1937 and 1968 the Court tended to vote in a liberal direction (averaging –0.382 over the period). Beginning with the election of Richard Nixon in 1968, the Court’s behavior shifted considerably to the right. Nixon appointed four justices to the Court, and since that time the mean justice has voted in a conservative direction (averaging 0.333 for the period between 1969 and 2011). Today the voting behavior of the mean justice on the Court is twice as conservative as it was 1968.

Figure 2 also illustrates that the shift in the Court’s behavior was a result of partisan appointments and the divisions between the parties rather than a general trend in judicial behavior. The dark gray broken line on top reflects the voting behavior of the mean Republican appointee, while the light gray-dotted line on the bottom reflects the behavior of the mean Democratic appointee. Despite year-to-year variations, the mean Republican score was consistently more conservative than Democratic appointees (except for the 1948–1952, when no Republican appointees served on the Court). Moreover, the gap between the mean Republican and mean Democratic justice has widened since 1968, although it has done so in an asymmetrical way with both parties becoming more conservative in recent years. This asymmetrical polarization reflects the fact that GOP appointees have become far more conservative while Democratic appointees have remained liberal (even while moving in a conservative direction) during the past 40 years.

If the GOP’s relative dominance of presidential electoral politics in the post-1968 period is reflected in a Court that has become more conservative, it is also true that electoral politics during this period has been more divided than in the past. Indeed, divided government has been a distinctive feature of post-1968 electoral politics. While the GOP held the presidency 70% of the time between 1968 and Obama’s election in 2008, it held both houses of Congress and the White House only about 10% of the time. Moreover, even though the GOP has tended to control the White House, there have nevertheless been three Democratic presidents elected since 1968 (Carter, Clinton, Obama). The divided nature of electoral politics since 1968 stands in marked contrast to previous electoral regimes. For example, between 1932 and 1968, Democrats controlled the White House for all but the eight years of Eisenhower’s presidency (1952–1960), and it held control of both houses of Congress for 26 of the 36 years during the period (Rosenberg 2009).

The divided, ideologically polarized nature of the post-1968 partisan electoral regime has left its mark on the Supreme Court as well. As already noted, the Court’s voting behavior became more polarized as Republican-appointed justices became more conservative and Democratic-appointed justices remained liberal (although they too have become more conservative on average in very recent years). Moreover, in contrast to the New Deal regime, when the Court was composed entirely or nearly entirely of Democratic-appointed justices for extended periods, this has not been the case since 1968. At no point has the Court been composed entirely of Republican-appointed justices or even had more than seven Republican appointees on it at one time. Indeed the current Court, with five Republican and four Democratic appointees, is as evenly divided as it was when Nixon left office in 1972.

The pattern of ideological polarization and divided control of the elected branches has produced a more fragmented form of decision-making on the Court, leading to fewer unanimous decisions, more dissenting and concurring opinions, and leaving the Court less able to speak with a unified voice. Typical of the Court’s fragmented decision-making is the head note explaining the Court’s opinions in the Sibelius case:

ROBERTS, C.J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined; an opinion with respect to Part IV, in which BREYER and KAGAN, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D. GINSBURG, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to Parts I, II, III, and IV. SCALIA, KENNEDY, THOMAS, and ALITO, JJ., filed a dissenting opinion. THOMAS, J., filed a dissenting opinion.

During his confirmation hearings, John Roberts lamented the fragmented nature of the Court’s decision-making and promised as Chief Justice to help it speak as an institution rather than as a collection of nine individuals (Sunstein 2006). As Roberts explained, “I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they are writing separately, about the effect [that has] on the Court as an institution” (Rosen 2007). However, in the face of the broader political forces structuring the Court’s behavior, Roberts has been unable to make good on that goal.

A standard measure of division on the Court is the degree to which the justices reach unanimity in their decisions, and, conversely, the number of decisions rendered by bare majority or closely divided votes. Figure 3 shows the percentage of cases decided by unanimous decision (9–0, 8–0) and by closely divided vote (with three or more justices in dissent) for each Court period between Warren (1953–1969) and Roberts (2005–2011).

Figure 3

Unanimous and divided decisions on the Supreme court.

Data for this table collected from SCOTUSblog’s end of the term statistical analysis (SCOTUSblog 2012).

Although the Court under the leadership of Rehnquist and Roberts decided a slightly higher percentage of their cases through unanimous opinions than it did under Burger and Warren, the percentage of divided decisions has grown steadily. In fact, the Roberts Court is the first to experience a higher percentage of sharply divided decisions than unanimous ones; with 43% decided with at least three dissents and only 42% decided unanimously. The nature of fragmentation in decision-making of the current Court is more apparent if we look at data from each of the last seven terms under Roberts’ leadership, displayed in Table 1.

TermCases decided5–4 Decisions, %Decided by opinion of the court, %Decided without dissent, %Dissents per case
2011–2012751520111533441.61
2010–2011821620101238461.37
2009–2010861622192240471.44
2008–200979232991126332.04
2007–2008711217142021301.73
2006–2007722433182527381.82
2005–2006821113374545551.30
Table 1

Unanimity and dissent 2005–2012.

The table reveals that John Roberts enjoyed something of a honeymoon during his first term as Chief Justice. Out of 82 cases decided that term, only 13% were split 5–4 decisions, the lowest in more than a decade, while 45% were through an institutional opinion for the Court (an opinion joined by all justices with no dissents or concurrences). The honeymoon, however, was short-lived. By 2008–2009, the Court was suffering from centrifugal forces once again. During that term, the Court handed down 29% of its decisions with 5–4 votes (the highest percentage in more than two decades), only 11% through an institutional opinion (the lowest percent in more than a decade), and had an average of two dissents per case.

Though the fragmentation on the Court has decreased slightly in recent terms, the Court remains severely divided, with more than one in five cases decided by bare majorities and still averaging more than one-and-a-half dissents per case. The Court has even taken to handing down per curiam opinions (opinions issued “by the Court” without indicating specific authorship) by sharply divided vote. This form of decision simultaneously insists on both institutional agreement in the form of an unsigned opinion, but individual disagreement in the form of a fractured vote – an oxymoronic practice has thus been on the rise under the Roberts Court, occurring in nearly 20% of all per curiam opinions since 2005 (Liptak 2012b).

The “Kennedy Court” Continues

In the wake of Sebelius some commentators were quick to claim a “maturation of the Roberts Court,” in which the Chief Justice is said to have been moving toward the center in order to assert greater control over the Court’s decision-making (Tribe 2012; Winkler 2012a). Indeed, during the 2011 term, Roberts voted with the majority 91% of the time, second only to Justice Kennedy who was in the majority 92% of the time.4

Concluding that Roberts is a unifying force on the Court, however, is premature at best. Although Roberts’ frequently votes with the majority in non-contentious cases, in those cases that divide the Court, Roberts nearly always votes with his conservative colleagues and (contrary to his role in Sebelius) rarely provides the swing vote. Indeed, in the 70 cases decided by bare majority vote since 2008, out of all the possible voting alignments, Roberts joined the conservative bloc in 39 cases (56% of the time), but joined the liberal bloc only twice.5 The argument that Robert’s leadership does not extend to cases that divide the Court is confirmed by data in Table 2, showing the frequency with which each justice voted with the majority in 5–4 decisions over the life of the Roberts Court.

Justice2011–2012 Term2010–2011 Term2009–2010 Term2008–2009 Term2007–2008 Term2006–2007 Term2005–2006 Term
Alito60%63%63%52%50%71%55%
Breyer47%31%38%39%45%46%27%
Ginsburg33%38%25%52%50%33%45%
Kagan43%38%00000
Kennedy80%88%69%78%67%100%73%
Roberts67%63%56%48%58%67%73%
Scalia60%69%69%70%58%58%73%
Sotomayor47%38%43%0000
Thomas67%75%69%65%67%61%64%
Table 2

Voting with the majority in split 5–4 decisions.

The conservative but polarized nature of the Court is clearly evident in its most recent 2011 term, where all five Republican-appointed justices (Scalia, Kennedy, Thomas, Roberts, and Alito) voted with the majority 60% or more of the time, while none of the four Democratic-appointed justices (Ginsburg, Breyer, Sotomayor, and Kagan) were in the majority more than 47% of the time. But the data also show that Justice Kennedy, not Roberts, continues to be the key swing justice (Clayton and Christensen 2008). Kennedy votes with the majority in 5–4 decisions far more often than any other justice on Court. During the most recent term, he voted with the majority in such cases 80% of the time (while Roberts and Thomas were next at only 67%).

In contrast to Kennedy, Roberts’ overall participation in 5–4 decisions is essentially indistinguishable from the other four Republican-appointed justices. Moreover, in contrast to Roberts, Kennedy often is a swing vote siding with the liberal bloc in closely divided cases. In the 70 cases decided by 5–4 votes since 2008, Kennedy has joined with the conservative bloc 36 times (51%), but also joined with the liberal bloc 18 times (26%). Indeed in the 15 cases decided by 5–4 votes last term, Kennedy joined the conservative bloc six times and the liberal bloc almost as often at five times.

Originally appointed by Ronald Reagan in 1987, Justice Kennedy is a reliable conservative vote on questions involving federalism, protecting business interests, and limiting federal regulatory power. However, in cases pitting the government against individual liberty interests, Kennedy is less predictable and tends to support the individual, regardless of whether the right involved is politically conservative (i.e., rights against gun control, affirmative action programs, or restrictions on corporate free speech) or politically liberal. In Boumediene v. Bush (2008), for example, Kennedy wrote the opinion for a 5–4 Court, upholding the right to habeas corpus review detainees at Guantanamo Bay.

Kennedy also sided with liberals in a string of cases curbing capital punishment, writing the majority opinions for a 5–4 Court in Roper v. Simmons (2005), prohibiting minors from being executed, as well as a 5–4 Court in Kennedy v. Louisiana (2008), prohibiting capital punishment for non-capital crimes. Similarly, Kennedy was author of the landmark decision for a divided Court in Lawrence v. Texas (2003), striking-down state sodomy laws and recognizing a constitutional right to private sexual conduct. Given the close balance on the Court, Kennedy will remain the swing vote in most major constitutional cases. Thus, in many ways it will continue to be more accurately characterized as the “Kennedy Court” rather than the Roberts Court (Clayton and Christensen 2008).

The Roberts Court and Constitutional Development

John Roberts has clearly struggled to help the Court speak with a unified voice. Indeed, the Court’s voting behavior is as divided and polarized as ever. However, if we turn to examining its major constitutional decisions in recent terms, we see that the Court has continued to advance the conservative constitutional vision of the New Right Republican Party. Although a thorough review of the Court’s jurisprudence is beyond the scope of this article, even examining a few areas of recent developments makes clear the conservative drift in constitutional law.

The modern Republican Party’s success in shaping constitutional discourse is most evident in the way the justices now approach constitutional interpretation. Chief Justice Roberts’ opinion in the Sebelius case, for example, began by discussing Alexander Hamilton’s views in the Federalist Papers, in order to divine what the Framers might have thought about a healthcare law passed some 220 years later. The dissent likewise employed a series of 18th-century dictionaries, parsing the Framers’ words, in order to argue the opposite.6 Although constitutional debates in the US have always paid attention to the views of the Framers, prior to the 1980s few judges would have thought their specific attitudes about a policy question emerging two centuries later were relevant, much less dispositive in a case.

This change in the mode of constitutional interpretation is the direct result of the GOP’s embrace of originalist jurisprudence, which the party has explicitly endorsed in presidential platform statements and advanced in government litigation and judicial selection strategies since 1980 (Clayton 1992; Johnson 2003). Originalism or some variant of it now dominates constitutional decision-making on the Roberts Court and even those justices who disagree with it feel compelled to dress up their arguments in the “garb of originalism” (Fleming 2007, Clayton 2011). Given that only a few decades ago there were few originalists of any stripe on the courts, it is remarkable the degree to which originalism now dominates the constitutional discourse of the Roberts Court (Toobin 2012).

Guns and the Second Amendment

The Court’s use of original-intent jurisprudence to advance a conservative vision of the Constitution can be seen clearly in recent decisions interpreting the Second Amendment. In 2009, the Roberts Court gave the National Rifle Association (NRA) and the Bush administration a long-sought-after policy victory by declaring for the first time that the Constitution protects a personal right to possess firearms. The case, District of Columbia v. Heller (2008), grew out of a challenge to a federal law essentially banning private handguns in the District of Columbia. In a century and a half of previous case law, the Court had refused to interpret the Second Amendment as protecting a personal right to possess firearms. The Amendment’s language (which prefaces the right to “bear arms” as part of a “well-regulated Militia”), and recognition of the dangers modern weaponry posed to urban societies, had led the Court to uphold regulation of guns by both national and state governments.7

In Heller, however, the argument turned almost entirely on the framers’ intent. Declaring that the Second Amendment protects a personal right to possess handguns for self-defense, Justice Scalia’s opinion for a 5–4 Court was a 64-page magnum opus of originalist analysis. Scalia deconstructed in exhaustive detail the framers’ understanding of each word of the Second Amendment (reflecting on the Glorious Revolution in England, discussing King George’s efforts to disarm the colonists, and repeatedly citing Blackstone). In response, Justice Breyer and Justice Stevens wrote separate dissents (which combined to another hundred pages) that also excavated 17th- and 18th-century documents to discern the intent of the framers (though they of course came to different conclusions).

Since the D.C. handgun ban was enacted under federal authority, the Second Amendment applied. The question 2 years later in McDonald v. City of Chicago (2010) involved the Court’s doctrine of incorporation under the Fourteenth Amendment and whether the Second Amendment also applies to state and local authorities. The case involved a 1982 handgun ban in the City of Chicago, challenged by Otis McDonald, a retired maintenance engineer living in a neighborhood over-run by gang violence. Since the Court’s decision in McDonald would ultimately affect all state and local gun-control laws across the country, the case understandably drew the attention of conservative gun rights advocates like the NRA, as well as gun control and law enforcement groups that opposed extending the Heller decision to the states.8

The Court’s decision in McDonald reflected the same 5–4 majority as Heller (with Justice Sotomayor replacing Justice Souter in the dissent). Writing for the majority, Justice Alito held that ownership of guns for self-protection was a fundamental right guarded by the Fourteenth Amendment. The Court’s previous decisions upholding state gun regulations, Alito argued, were irrelevant. Stevens and Breyer again wrote separate dissents challenging the majority’s history. In sum, Breyer wrote, “the framers did not write the Second Amendment in order to protect a private right of armed self-defense…” there “has been, and is, no consensus that the right is, or was, ‘fundamental.’”

The Court’s Second Amendment decisions are striking not only because they show a sharply divided Court overturning a century or more of case law to advance a conservative policy objective, but because the debate took place entirely within the framework of original-intent jurisprudence. Indeed, in much the same way that earlier notions of “evolving conceptions of justice” or a “living constitution” had dominated constitutional discourse on the Warren Court (Ely 1980), originalism and the framers’ intent today dominates argument on the Roberts Court.

The First Amendment and Campaign Financing

Campaign finance and the First Amendment is another area clearly reflecting the conservative movement in constitutional law, if not the even more immediate electoral interests of the GOP. In Buckley v. Valeo (1976) the Court had struck-down a federal law limiting how much money candidates could spend during campaigns while simultaneously upholding restrictions on campaign contributions. The Court reasoned that spending limitations unconstitutionally restricted political speech, but contribution limits did not affect the expression of political ideas per se (only to whom one could contribute) and advanced the constitutionally legitimate purpose of preventing “quid pro quo” forms of political corruption.

That distinction eventually led to a two-tier system of campaign finance, one in which “hard money” given directly to a candidate’s campaign was subject to contribution limits and rigorous public disclosure requirements, but “soft money” given to political parties or political action committees (PACs) for “party-building activities” or “issue advocacy” was not. By the 1990s, the unregulated soft money that political parties and PACs raised from corporate donors, unions, and other wealthy contributors, was eclipsing the regulated hard-money raised by candidates in campaigns.

Congress responded by passing the Bipartisan Campaign Reform Act of 2002 (BCRA), which prohibited PACs from funding “electioneering communications” (ads that specifically mentioned a candidate) within 60 days of a general election or thirty days of a primary election. Although Republican John McCain (R-AZ) was a prominent cosponsor of BCRA, the law passed Congress largely on party lines, with Democrats in support and Republicans opposed.9 When BCRA was challenged in McConnell v. FEC (2003), Justice Stevens, writing for a 5–4 Court, upheld the restrictions. Consistent with its line of post-Buckley decisions, Stevens said the restrictions in BCRA were minimally invasive of free speech and closely related to the government’s interest in preventing corruption in elections.

A key member of the McConnell majority, Justice Sandra Day O’Connor, retired in 2006, and was replaced by President George W. Bush with a more-conservative Samuel Alito. Within a few years, the Court heard arguments in another challenge to BCRA. Citizens United v. FEC (2010) focused on a decision by the Federal Election Commission to classify a small conservative group’s documentary film, Hillary: The Movie, as prohibited “electioneering communication.” The film, which was highly critical of Clinton, ran just prior to Democratic primaries in 2008 in which she was a presidential candidate. The Court could have decided the case narrowly by focusing on whether the FEC correctly prohibited the particular movie, but instead it reached out to revisit its decision just a few years earlier in McConnell.

Writing for a bitterly divided 5–4 Court, Justice Kennedy (joined by Roberts, Scalia, Thomas, and Alito) reversed McConnell and struck-down the law, concluding that corporations have the same free-speech rights as individuals. “Political speech is indispensable to a democracy, which is no less true because that speech is coming from a corporation,” Kennedy wrote. Incensed by the Court’s hasty reversal of McConnell, Justice Stevens took the rare step of reading his dissent from the bench. Chiding the conservative majority’s activism in overturning a congressional statute and its own recent precedents, Stevens wrote that the Court was inviting corporations to spend unlimited amounts of money in elections with little or no accountability and putting American democracy up for sale.

Within days of the Court’s decision, President Obama repeated Stevens’ denunciation of it during his State of the Union speech, but the president’s rebuke also seems to have had little effect. The following year, the five conservative justices struck-down another campaign finance law in Arizona Free Enterprise Club v. Bennett (2011). The Arizona statute involved in this case did not even restrict campaign spending, but merely provided extra money to candidates who chose public funding if an independently financed opponent exceeded certain spending limits. The same 5–4 majority in Citizens United now held that Arizona’s law burdened free speech rights of privately-financed candidates by “leveling the playing field” with public funds.

As hundreds of millions of dollars from corporations and rich donors flowed into the 2012 campaign cycle, many thought that the Court might use a case at the end of its 2011 term, American Tradition Partnership v. Bullock (2012), to revisit its Citizens United decision. In Bullock, the Montana Supreme Court had upheld a state law regulating corporate campaign spending by distinguishing Citizens United on the ground that the state law was addressing a long, documented history of corporate corruption in Montana elections. The Court, in one-page per curiam opinion with four justices dissenting, simply said its holding in Citizen United also applies to state restrictions on campaign spending.

Federalism and Federal Preemption

If gun rights and campaign finance demonstrate the conservative but closely divided nature of the Roberts Court, recent developments in constitutional federalism and federal preemption indicate how certain cross-cutting political cleavages are also manifesting themselves on the Court. New federalism, or the idea that certain powers should be transferred from the federal government back to the states, has been a major policy priority of the post-1968 GOP. While both Democrats and Republicans supported some devolution of political power, the GOP also embraced a new “judicial federalism.”

Rejecting the New Deal view that the balance between states and the national government should be determined by the political process and not in the courts, this approach argues that courts should enforce boundaries found in the Tenth and Eleventh Amendments and should strictly construe the enumerated powers of Congress. Indeed, every GOP platforms since 1980 has explicitly committed the party to appoint judges committed to protecting the “constitutional sovereignty of states” and to decentralizing or reducing federal power under the Constitution (Clayton and Pickerill 2004).

The commitment to judicial federalism began bearing fruit in the mid-1990s when a bloc of five Republican-appointed justices on the Rehnquist Court started holding, for the first time since the 1930s, that Congress had enacted statutes that either exceeded its authority under the Interstate Commerce Clause or had violated state sovereignty under the Tenth Amendment and Eleventh Amendments. Though at times, the Rehnquist Court’s commitment to policing the boundaries of federalism appeared more political than principled.

The Court seemed to be invalidating federal statutes that conservatives disapproved of, in cases such New York v. United States (1992) (invalidating a federal environmental protection statute) and United States v. Lopez (1995) (invalidating portions of a handgun control law) for infringing on state sovereignty, or in cases such as United States v. Morrison (2000) (striking down the federal Violence Against Women Act) and Printz v. United States (1997) (striking-down federal gun control law), where it said Congress exceeded its authority to regulated interstate commerce. However, the Court seemed to be willing to upheld federal laws that conservatives favored, such as in Gonzales v. Raich (2005), where it held that the federal government’s Commerce Clause powers were sufficient to outlaw the use of medical marijuana even if it was never bought, sold, or crossed state lines.

Against this backdrop came the Sebelius case in 2011. Prior to the Court’s New Federalism decisions in the 1990s, a challenge to Congress’s authority to regulate the interstate healthcare market, which makes up nearly one-sixth of the US economy, would have been frivolous. Indeed, despite the bitter partisan fights surrounding passage of the Affordable Care Act, most legal scholars thought that legal challenges to the act still stood very little chance of success (Toobin 2012).

So it surprised most, including the Obama administration, when the Court took the case and scheduled it to be decided just months prior to the 2012 presidential election. Not since Bush v. Gore (2000) had the Court willingly inserted itself into such a political firestorm. The stakes were high. The last time a bare-majority of justices struck-down a president’s key legislative achievement, it cost the Court not only public disapproval but precipitated a frontal challenge to the Court’s institutional authority by President Franklin Roosevelt, who, after reelection in 1936, proposed a Court-packing plan (Carson and Kleinerman 2002).

In the wake of the conflict over Citizen’s United, Chief Justice Roberts clearly hoped to avoid another bitterly split, partisan decision, especially one going against a popular Democratic president [(Winkler 2012a); see also Tribe (Tribe 2012)]. However, even as Roberts upheld the individual mandate as an exercise of Congress’ taxing and spending powers, his opinion deftly finessed other conservative constitutional values. Not only did Roberts agree that Congress lacked powers under the Commerce Clause to impose a mandate, his opinion also declared provisions in the law that coerced states to expand their Medicaid spending as an unconstitutional violation of state sovereignty.

Moreover, in dicta, his opinion suggested for the first time since the 1930s that there may be constitutional limits on Congress’ taxing and spending power as well (Toobin 2012). Thus, while the decision was an important policy victory for the Obama administration, it may prove in the long-term to be a windfall in the New Right constitutional counter-revolution (Krauthammer 2012).

Tensions within the conservative coalition, however, are even more evident in the Court’s recent cases involving federal preemption. In contrast to the Rehnquist Court’s focus on constitutional federalism, the Roberts Court often appears more concerned about protecting corporations from state and local regulators. In many cases, the Court has affirmed federal power to regulate interstate commerce in order to preempt business regulation by state and local governments (Pickerill 2009). During its last term, for example, the Court held in National Meat Association v. Harris (2012), that that the Federal Meat Inspection Act preempted a California food safety law prohibiting the butchering and sale of road kill animals. Similarly, in Kurns v. Railroad Friction Products Corp. (2012), it held that state laws allowing tort claims by employees exposed to asbestos had been preempted by federal employment safety laws.

Preemption, however, can run both ways. In Arizona v. United States (2012), the Court struck-down most of a controversial Arizona immigration law opposed by the Obama administration. In the 5–3 opinion authored by Justice Kennedy, the Court held that three of the four main provisions of the law, which aimed at making it easier for Arizona to apprehend and deport illegal immigrants, were preempted by federal immigration statutes. Yet during the previous term, in another case involving illegal immigrants, Chamber of Commerce v. Whiting (2011), the Court maintained its larger devotion to state sovereignty when it held that a state law requiring employers to check the immigration status of job applicants was not preempted by federal immigration statutes.

Other Developments

The Roberts Court’s recent decisions continue to reflect a conservative drift in other areas of law as well. For instance, the Court continued to lower the wall separating church and state in cases such as Arizona Christian School Tuition Organization v. Winn (2011), holding by 5–4 that taxpayers lacked standing to challenge a school tax credits that funnels state funds into religious schools, and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), recognizing for the first time a “ministerial exception” to federal employment discrimination laws. It continued to narrow protections for criminal defendants in cases such as Florence v. Board of Chosen Freeholders (2012), upholding by 5–4 suspicionless strip-searches of inmates, and Davis v. United States (2011) plus Michigan v. Fisher (2009), further expanding exceptions to the exclusionary rule under the Fourth Amendment.

The Court has also continued aggressively to protect corporations against private tort suits (Pickerill 2009).10 For example, in a series of cases, the Court has held that prescription drug makers cannot be sued for overcharging public hospitals [Astra USA v. Santa Clara County (2011)]; that consumers cannot sue foreign manufacturers in a US courts when another company sells the foreign manufacturer’s product [Goodyear v. Brown (2011)]; and, in a much-watched case, that a group of women bringing a gender discrimination suit does not have standing to represent the entire class of women employed by the company [Wal-Mart Stores v. Dukes (2011)].

Finally, although the Court decisions in Sebelius and the Arizona immigration law case were hailed as important victories for the Obama administration, they overshadow the fact that the Roberts Court generally has been hostile toward the administration during its first term, ruling against it in over half the cases where the Obama Justice Department was party (Liptak 2012c; Winkler 2012b). In addition to major losses in the campaign finance, gun control, and business regulation cases already discussed, the Court, for example, also handed the administration major defeats in the area of environmental protection.

In Coeur Alaska v. S.E. Alaska Conservation Council (2009), the Court held that the EPA lacked authority to prevent a mining company from discharging wastewater into a lake in Alaska. In American Electric Power Co. v. Connecticut (2010), the Court said the EPA can regulate greenhouse gas emissions, but held that states and private parties do not have authority to sue utility companies under the Clean Air Act, thus placing a significant burden on the EPA. And in a major regulatory takings case, Sackett v. Environmental Protection Agency (2012), the Court significantly limited the EPA’s ability to issue administrative compliance orders without going to court under the Clean Water Act.

A Second Obama Term and the Court

It is too early to tell what Obama’s reelection portends for the future of American electoral politics: whether it is the continuation of the polarized and divided politics that has characterized the post-1968 electoral regime or evidence of an emerging new regime with a more progressive bent. Presidential historian Skowronek (2010) recently characterized the first Obama term as the politics of a “second-round oppositional leader,” meaning his presidency thus far, relative to the New Right electoral regime, teeters on the line between the politics of preemption (like Clinton) and the more decisive politics of reconstruction of a new electoral order.

When it comes to the administration’s relationship to the federal judiciary, however, there is little indication that Obama aspires to restructure the courts fundamentally or to push major new constitutional initiatives. Indeed, Obama’s approach to judicial appointments during the first term evinced a general apathy about the judiciary. Although Senate Republicans frequently filibustered floor-votes on his nominees, Obama was far less insistent in pushing his nominations than his predecessor George W. Bush, who, unlike Obama, also faced a Senate controlled by the opposition party in his second term. Indeed, Obama left 82 vacancies unfilled on the federal bench at the end of his first term, fully 9% of the 874 Article III judgeships. Compare this to the Bush administration which left only 29 vacancies unfilled (3% of 875 seats) at the end of his first term and 42 seats unfilled (4% of 875) at the end of his second.11

Obama’s indifference was more actively reflected in his first-term appointments to the Supreme Court, which tended to prioritize diversity over ideology. By appointing Sonia Sotomayor and Elena Kagan, Obama added the first Latina to the Court and brought the number of female justices to three for the first time in its history. Both nominees, however, were viewed as ideological moderates at the time of their appointment (Robinson 2010), and their voting record thus far shows that they are actually far more conservative than the justices they replaced (David Souter and John Paul Stephens, respectively).12

Obama’s disinterested approach is surprising, given that he is a former law professor, but it undoubtedly reflects his longstanding belief in a limited role for judicial power and that the view that the best thing judges can do is “stay out of the way of progressive policymakers” (Goldstein 2012). For Obama, the Supreme Court should remain static in its protection of basic rights, but more importantly, it should show restraint by not overturning the policies enacted by the elected branches. This may help explain why the president was quick to attack the Court for overturning progressive legislation in Citizens United and threatening to do so in Sebelius, but has so far declined to launch any major judicial initiatives or push a progressive alternative to original-intent jurisprudence. Similarly, it may help explain, albeit paradoxically, why a progressive president who argues for judicial restraint finds himself in conflict with a Supreme Court whose conservative Chief Justice aspires to continue the conservative constitutional counter-revolution (Toobin 2012).

In his second term, Obama can expect to fill at least one vacant seat on the high bench. Justice Ruth Bader Ginsburg has already signaled that she will retire before 2015, when she will be 82 years old (Goldstein 2012; Mears 2012). However, since he would be replacing a liberal, Democratic-appointed justice, this will not give Obama the opportunity to reshape the ideological direction of the Court. If Ginsburg does retire as expected, it is almost certain that Obama would nominate another woman to fill her seat, and quite likely another individual from an underrepresented group. The short-list of potential Obama nominees includes:

  • Kamila Harris, 47, is the daughter of an African-American father and an Asian-American mother (native of Tamil, India). She currently serves as Attorney General of California and is rumored to have plans to seek the Governorship when Jerry Brown retires. She was a strong supporter of Obama’s 2008 and 2012 campaigns.

  • Jacqueline Hong-Ngoc Nguyen, 47, was born in Dalat, Vietnam. She became the first Asian-American woman to sit on a federal appeals court after her appointment to the 9th Circuit Court in 2012. If appointed to the Supreme Court, she would be the first Asian-American to sit on the nation’s highest bench.

  • Mary Marguia, 52, the daughter of Mexican immigrants, also currently serves on the federal 9th Circuit Court of Appeals, appointed to that seat by Obama in 2010.

  • Lisa Madigan, 46, was the first female Attorney General for Illinois, elected in 2002. Prior to that she worked closely with then state senator Barack Obama where they became close friends.

  • Kathryn Ruemmler, 41, is in the Obama administration’s Office of White House Counsel. She is young and lacks judicial experience, but she helped spearhead the legal defense of the Affordable Care Act upheld by the Court.

Three other justices on the Supreme Court will be approaching 80 by the end of Obama’s second term: Justices Antonin Scalia and Anthony Kennedy are currently 76, and Stephen Breyer is 74. However, none of them have indicated any desire to retire, and all seem to be in reasonable health. It is also unlikely that any of the five conservative justices will voluntarily leave the bench while a Democratic president is in office. Should that happen, however, any nominee would have to survive intense scrutiny by Senate Republicans, including the possibility of a Senate filibuster, as a replacement would create the first Democratic-appointed majority on the Court since 1972. If another vacancy does occur, other potential nominees the president would consider include:

  • Deval Patrick, 56, an African American, current Governor of Massachusetts, and close friend of the president.

  • Paul Watford, 45, the second active African-American judge on the 9th Circuit US Court of Appeals, appointed by Obama in 2011 and a former clerk to Justice Ruth Bader Ginsburg.

  • Jennifer Granholm, 53, former Attorney General and current Governor of the state of Michigan, also a prominent Obama supporter during the 2008 and 2012 campaigns.

Regardless of how Barack Obama vets future judicial nominees, his first term demonstrates that he is not afraid to use the bully pulpit to criticize what he views as the Court’s activism. The Court is expected to take up several controversial cases in the coming term. For example, the justices have already heard oral arguments in a case that could result in the demise of affirmative action programs in higher-education admissions (Fischer v. University of Texas, No. 11–345); agreed to review the constitutionality of Section 5 of the 1965 Voting Rights Act, which requires states with a history of discrimination to pre-clear with the federal government any change to their election laws (Shelby County v. Holder, No. 12–96); and has granted certiorari in cases challenging the constitutionality of California’s Proposition 8, banning same-sex marriage (Windsor v. US, No. 12–63), and the federal Defense of Marriage Act (DOMA) (Massachusetts v. Dept. of Health and Human Services, No. 12–97).

Justice Kennedy will more than likely continue his role as the swing vote in most of these, and in other major constitutional cases. Since Kennedy was author of Lawrence in 2003, he is likely to join liberals in handing a victory (though most likely only partial) to supporters of same-sex marriage. However, given Kennedy’s previous decisions involving affirmative action,13 he is more likely to join conservatives in striking-down affirmative action programs in college admissions. The case involving Section 5 of the Voting Rights Act is complicated. Three years ago, the Court was asked to determine the constitutionality of the provision but declined to do so, with eight of the justices providing no sign of how they might vote on this question in the future.14 In previous cases considering the application of Section 5 of the VRA, Justice Kennedy has been on both sides. He joined the conservative voting bloc to form a bare 5–4 majority in Reno v. Bossier Parish School Board (2000) and Georgia v. Ashcroft (2003), but joined the liberal bloc and wrote the opinion for the bare 5–4 majority in League of Latin American Citizens v. Perry (2006). How he votes this time will probably be critical in whether Section 5 survives.

Conclusion

It is safe to assume that John Roberts and his fellow conservatives on the Court will continue to reconstruct constitutional law in line with the values and vision of the post-1968 Republican Party that appointed them. These efforts will be moderated by Justice Kennedy’s influential swing role on the Court in areas involving individual rights especially, where liberals can expect isolated victories. Although tensions with the White House have been temporarily soothed in the wake of the Sebelius decision, it is also likely that the Court will continue to find itself in conflict with the Obama administration. Obama can expect to fill at least one vacancy on the high bench during his second term, but he is unlikely to alter the current ideological balance, and his reelection will thus preserve a sharply divided Court.

In the short-term, Obama is certain to continue using the bully pulpit, executive litigating power, and judicial selections opportunistically in order to limit and preempt the conservative drift of constitutional law. He may on occasion also seek legislative responses to decisions he opposes (such as Citizens United). However, given his preference for a limited judicial power relative to democratic policymaking, Obama is unlikely to engage in any aggressive effort to restructure the judiciary or launch major new initiatives aimed at broader progressive constitutional reform.

In the longer-term, Obama’s reelection, however, may portend much more for the Court. This article has argued that the federal judiciary is structured over time by broad developments in the elected branches. Obama is the first Democratic president since Franklin Roosevelt to win two elections with absolute majorities of the popular vote. Moreover, the younger, more ethnically diverse, demographic shape of Obama’s coalition augers well for future Democratic electoral prospects. It is too early to tell whether Obama’s presidency will be viewed by future historians as leading into a new era of electoral politics, but if it is, they are also likely to view the Roberts Court as a holdover institution from a declining New Right electoral regime.

Cases Cited

American Tradition Partnership v. Bullock, 567 US ____ (2012)

Arizona Christian School Tuition Organization v. Winn, 563 US ____ (2011)

Arizona v. US, 567 US ____ (2012)

Astra USA v. Santa Clara County, 563 US ____ (2011)

Boumediene v. Bush, 553 US ___ (2008)

Buckley v. Valeo, 424 US 1 (1976)

Bush v. Gore, 531 US 98 (2000)

Chamber of Commerce of the United States v. Whiting, 563 US ___ (2011)

Citizens United v. FEC, 558 US ____ (2010)

Coeur Alaska Inc. v. SE Alaska Conservation Council, 557 US ___ (2009)

Davis v. United States, 564 US ____ (2011)

District of Columbia v. Heller, 554 US ____ (2008)

Gonzales v. Raich, 545 US 1 (2005)

Goodyear v. Brown, 564 US ____ (2011)

Gratz v. Bollinger, 539 US 244 (2003)

Grutter v. Bollinger, 539 US 306 (2003)

Hossana-Tabor Evangelical Lutheran Church and School v. EEOC, 565 US ___ (2012)

Kennedy v. Louisiana, 554 US ___ (2008)

Kurns v. Railroad Friction Products Corp., 565 US ____ (2012)

Lawrence v. Texas, 539 US 558 (2003)

League of Latin American Citizens v. Perry, 548 US ___ (2006)

McConnell v. Federal Elections Commission, 540 US 93 (2003)

McDonald v. City of Chicago, 561 US ____ (2010)

Michigan v. Fisher, 558 US ____ (2009)

National Federation of Independent Business v. Sebelius, 567 US ____ (2012)

National Meat Association v. Harris, 565 US ____ (2012)

Northwest Austin Municipal v. Holder, 557 US ____ (2009)

New York v. United States, 505 US 144 (1992)

Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 US 701 (2007)

Perry v. Perez, 565 US ____ (2012)

Presser v. Illinois, 116 US 252 (1886)

Printz v. United States, 521 US 898 (1997)

Reno v. Bossier Parish School Board, 528 US 320 (2000)

Ricci v. Defestano, 557 US ____ (2009)

Roper v. Simons, 543 US 551 (2005)

Sackett v. EPA, 566 US ____ (2012)

United States v. Cruikshank, 92 US 542 (1876)

United States v. Lopez, 514 US 549 (1995)

United States v. Miller, 307 US 174 (1939)

United States v. Morrison, 529 US 598 (2000)

Wal-Mart Stores v. Dukes, 564 US ____ (2011)

Footnotes

  • 1

    GOP candidates won presidential elections in 1968 and 1972 (Richard M. Nixon), 1980 and 1984 (Ronald Reagan), 1988 (George H.W. Bush); 2000, 2004 (George W. Bush). During the previous 36-year period the GOP candidate won the presidency only twice in 1952 and 1956 (Dwight D. Eisenhower).

  • 2

    GOP appointments include: Warren Burger 1969–1986; Harry Blackmun 1970–1994; Lewis Powell 1972–1987; William Rehnquist 1972–2005; John Paul Stevens 1975–2010; Sandra Day O’Connor 1981–2006; Antonin Scalia 1986-present; Anthony Kennedy 1987–present; David Souter 1990–2009; Clarence Thomas 1991–present; John Roberts 2005–present; and Samuel Alito 2006–present. The Democratic appointees include: Ruth Bader Ginsburg 1993–present; Stephen Breyer 1994–present; Sonia Stotomayor 2009–present; and Elena Kagan 2010–present.

  • 3

    Martin and Quinn (2002) scores are dynamic measures that place a justice’s ideal preference point on a common ideological continuum. They do so for each justice in each term since 1937, and are estimated using longitudinal data in the form of per-term merit votes derived from the Supreme Court Judicial Database (http://mqscores.wustl.edu). For easier interpretation of the data, the trends presented in Figure 2 are based on an analysis of 5-year intervals from 1937 to 2011. The horizontal axis shows every year in order to include all presidential terms during this time period.

  • 4

    All data in this section unless otherwise indicated are collected from SCOTUSblog’s end of the term statistical analysis (SCOTUSblog 2012).

  • 5

    Both cases where Roberts joined the liberal bloc to make a bare majority occurred at the end of the 2011 term; NFIB v. Sebelius and Arizona v. United States. The latter was a 5–3 decision with Kennedy also in the majority but Justice Kagan not participating.

  • 6

    See joint dissent at 4–5.

  • 7

    See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); and United States v. Miller, 307 U. S. 174 (1939).

  • 8

    More than 33 groups filed amici curiae (“friends of the Court”) briefs, including one brief signed by 58 US Senators and 251 members of the House of Representatives, most of which were Republican, asking the Court to apply the Second Amendment to the states.

  • 9

    Democrats supported the bill by a vote of 49–2 in the Senate and 198–12 in the House, while Republicans opposed it by a vote of 37–12 in the Senate and 176–41 in the House.

  • 10

    One notable exception however was the Chief Justice Robert’s opinion for a unanimous Court in FCC v. AT&T (2011), which held that corporations do not have a personal privacy interest that would protect them from disclosing public records regarding charges.

  • 11

    Data taken from the Administrative Office of the US Courts online website, accessed on December 18, 2012; http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies.aspx.

  • 12

    Using the dynamic Martin-Quinn ideological scores (Martin and Quinn, 2002), Sotomayor, during her first two terms on the Court, has a conservative MQ average (0.018). She replaced David Souter, who had a liberal MQ average (–0.812). Justice Kagan’s first term MQ score (0.029) is also more conservative than the justice she replaced, John Paul Stevens (–1.505).

  • 13

    E.g., Grutter v. Bollinger (2003), Gratz v. Bollinger (2003), Parents Involved in Community Schools v. Seattle School District No. 1 (2007), and Ricci v. DeStefano (2009).

  • 14

    Northwest Austin Municipal v. Holder (2009). Only Justice Thomas, in a concurring opinion, said that the provision should be invalidated. He reiterated this view in Perry v. Perez (2012), where a per curiam opinion for a unanimous Court held that a U.S. District Court in Texas did not violate the VRA when it redrew 36 of Texas’ electoral districts.

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Bionotes

Cornell W. Clayton

Cornell W. Clayton is the Director of the Thomas S. Foley Institute of Public Policy and Public Service and the Claudius O. Johnson Distinguished Professor of Political Science at Washington State University.

Lucas K. McMillan

Lucas K. McMillan is a Doctoral Student in Political Science at Washington State University.

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