How Conservative Is the Supreme Court?

Conservatives are often disappointed with the justices Republican presidents put on the Supreme Court.  That is not new.  Past Republican presidents were a mixed bag in terms of conservative appointments. Ronald Reagan appointed the most popular conservative justice of modern times, Antonin Scalia. George H.W. Bush put Justice Clarence Thomas on the court – and his son, George W. Bush gave the high court Justice Samuel Alito.  All rock-solid constitutional conservatives.

Other picks were disappointments to conservatives – some of whom seemed to have shifted to the left after their confirmations.  Perhaps the greatest disappointment to conservatives was H.W. Bush’s nomination of Justice David Souter.  But others who took more moderate to liberal positions were Justice Sandra Day O’Conner (Reagan) and Chief Justice John Roberts (W. Bush).

Never have conservatives been more optimistic of finally having a court that leans to the right than with the unprecedented three appointments made by a first term President, Donald Trump.  Based on the rancorous hearings, it was obvious that progressives felt the same.  What delighted the right terrified the left.

So, how have things gone?

One of my personal rules of politics is that if your side wins, things will never be as good as you think. Nor will they be as bad as the opposition fears.  That may apply to the contemporary Court.

President Trump has already expressed disappointment in his own nominees to the Court – specifically what they did or did not do relative to cases arising out of the 2020 presidential election.  The most notable setback for Trump was the Supreme Court’s dismissal of a case brought by Texas against several battleground states that had changed election laws without the approval of the state legislatures – as required by the various state constitutions.  They were blatant violations of the law, but the high court did not hear the arguments.  Instead, they dismissed the case on the grounds that Texas did not have standing. This means that Texas did not have the right to interfere in the elections of other states.

In expressing his frustration, Trump said, “I fought very hard for them, but I was very disappointed in a number of their decisions.”

There are already grumblings from the social and cultural conservative community – including the evangelicals. The Court upheld the right of transgender students to select the bathroom of their choice.  The Court – which conservatives hoped would completely kill Obamacare – decided in favor of the controversial government-run health plan. 

Also, The Court refused to hear the case of a Washington State florist who refused to provide flowers for a gay wedding on religious grounds.  Lower federal courts had ruled against her.  In not hearing the case, the lower court rulings stand.

On the other hand, conservatives had some major victories that they would not likely have had without the new conservative members of the Supreme Court.  The high court preserved the right of free speech by declaring that a school board could not punish a student for foul language used outside of school property.

The Court ruled in favor of an Arizona law that disqualified ballots if cast in a wrong precinct on the basis that states had broad powers over election rules in their states.  This case bodes well for the many state legislatures passing laws to protect the integrity of the voting process in their states.

Conservative concerns over the so-called conservative members of the Supreme Court may not be unwarranted.  A survey of recent decisions indicted how often conservative justices voted with the liberal minority.

Kavanaugh (85%)

Barrett (70%)

Roberts (69%)

Gorsuch (62%)

Thomas (46%)

Alito (23%)

The three Trump appointments – alleged to be the most consistently conservative justices – actually supported liberal positions two-thirds of the time.  Some of those cases were non-controversial, with the Court rendering 9 to 0 rulings. But the difference between Alito and Kavanaugh is telling. And the difference between Alito and Barrett is shocking in view of her pre-Supreme Court record and the hostility of the left to her nomination.

Perhaps conservative expectations have been too high – that the issues of the Supreme Court are too nuanced to conform to contemporary political philosophy.  In fact, the theory behind giving Supreme Court justices lifetime tenure is to insulate them from contemporary political philosophy.

But the question remains, why is it the conservative justices seem to do the most “evolving.”

One only need remember when Chief Justice Roberts shocked many when he joined the then-four liberal justices to declare Obamacare constitutional by arbitrarily determining that the required payments were a tax and not an imposed fee.  He determined that even though President Obama said it was not a tax. And according to the statements and intent of Congress in passing Obamacare, it was not to be considered a tax.

These are the early days of the new “conservative” Supreme Court.  There are many important decisions ahead.  We should not judge too quickly.  But it is fair to say that things are not looking good for conservatives if these early votes are any indication of the future.

So. There ‘tis.