With the end of the first term of the Roberts court, some liberals seemed to give a sigh of relief that the new conservative majority had not returned the nation to an antebellum legal system. But on closer inspection, the past term was no cause for hope, let alone celebration, for uneasy liberals, moderates or libertarians.
To the contrary, the only comfort these groups should take from the past term is that it will likely prove far better than the coming term when the court is poised to hear cases involving affirmative action, abortion, environmental law and other hot-button issues.
Despite hopeful accounts that John Roberts and Samuel Alito would prove mainstream jurists, they proved every bit as ideological in major cases as predicted. Indeed, Roberts and Alito had the highest agreement rate of the justices — 90.9% — according to a Georgetown University study.
While there was a slight increase in unanimous decisions (46 out of 82 cases), this appearance of unanimity was achieved by taking less controversial cases and adopting extremely narrow rulings. In the 16 decisions decided by a five-vote majority, there was a sense of a less tranquil future. In these key cases, the court fractured over ideological lines, with both Roberts and Alito squarely on the far right.
This was no bait and switch. Neither Roberts nor Alito promised to be a moderate — they simply allowed others to suggest that they were moderates. Since Roberts and Alito refused to confirm their views in their hearings, their defenders insisted that no one could predict how these justices would vote. Thus, when I wrote at the time in USA TODAY that Roberts would be a predictable vote to narrow environmental laws, to curtail criminal defense rights, to block actions against government abuse and to expand presidential power, administration boosters such as law professor Ronald Rotunda objected that I was reading “tea leaves” and claiming “powers more clairvoyant than any ancient shaman.”
Of course, Roberts voted this term with complete consistency with his earlier advocacy and writings. While ruling against the government in support of religious practices and property rights, Roberts maintained an exceptionally pro-government position at the cost of individual rights in major cases. This ultraconservative record is reflected by the fact that he voted with conservative Justice Antonin Scalia in more than 86% of the cases (notably, Roberts broke with Scalia in U.S. v. Gonzales-Lopez, in which Scalia wrote to uphold an individual’s right to choose his own attorney and ordered a new trial).
Consider just a few other examples:
• In Rapanos v. U.S., Roberts and Alito joined with Scalia and Clarence Thomas in an opinion that would have dramatically reduced the scope of the Clean Water Act. A major reduction of federal authority was blocked only by a concurrence from Justice Anthony Kennedy.
• In Gonzales v. Oregon, Roberts joined Scalia and Thomas in excoriating his colleagues for not striking down Oregon’s law allowing physician-assisted suicide.
• In Georgia v. Randolph, Roberts wrote a dissent arguing that police should be able to enter a home if only one occupant gives permission — a significant reduction in the historically high protections afforded homes under the Constitution.
• In House v. Bell, Roberts dissented with Scalia and Thomas from an opinion allowing a death row inmate to get a hearing to present possible DNA evidence of his innocence.
For his part, Alito showed no interest, let alone inclination, in taking a moderate position in major cases. While joining the court roughly halfway through the term, Alito was able to reverse at least two votes of retired justice Sandra Day O’Connor in pending opinions and proved as extreme as predicted:
• In Hudson v. Michigan, Alito joined Roberts in a 5-4 decision that effectively gutted the constitutional requirement for police to knock and announce before forcibly entering a home. The ruling — that it was not necessary to suppress evidence after such a violation — stripped the constitutional right of any meaningful protection.
• In Kansas v. Marsh, Alito’s arrival on the court forced a reargument of a case on use of the death penalty. Alito flipped the result and upheld a Kansas law that required the imposition of the death penalty when mitigating and aggravating factors were equal — a major shift in doctrine.
• In Hamdan v. Rumsfeld, Alito joined Scalia and Thomas in a dissent that argued for recognizing virtual unchecked authority in the president’s handling of detainees. Roberts did not participate in the decision because he had voted in the case as an appellate judge in favor of the government’s sweeping claims.
While the conservative majority will likely hold most cases, there remains one wild card. These cases illustrate the transcendent role of the conservative Kennedy, who has emerged as the new center of gravity on the court in some areas.
These votes reveal a new vision of our society emerging from the new conservative base of the court with Roberts and Alito. It is a society with few checks on the government except when it comes to environmental protection, private property, affirmative action, or religious practices. It is the very transformation that many wanted to discuss in the confirmation hearings but were blocked by the refusal of the nominees to answer questions and the refusal of senators to insist on such answers.
Now, Roberts and Alito are speaking clearly and loudly — from the far right side of the court.