Legal Affairs – How the ‘Conservative’ Supreme Court Leans to the Liberal Side

National Journal

On July 2, when Sen. Orrin G. Hatch, R-Utah, said on NBC’s Meet the Press that the current Supreme Court is "centrist-left," many a Washington journalist (among others) sniggered. Hadn’t Hatch read the papers or watched any televised news within the past few days-or the past 25 years? Did he miss the recent editorial in the Los Angeles Times, which called the Court "unblushingly conservative"?

In fact, Hatch was exactly right. Right, that is, if one relies on the reference points that most news consumers would use to locate the Court’s major decisions on the ideological spectrum (the political attitudes of most ordinary Americans-not most law professors and Washington journalists). Although I have touched on this before, recent decisions and poll results underscore that on the hottest issues around–abortion, religion, affirmative action preferences, gay rights-the Court is more centrist-left than it is conservative.

•Abortion. The public disagreed, 49 percent to 41 percent in a Newsweek poll, with the 5-4 decision on June 28 that swept away the laws of 31 states banning late-term abortions, the second and third trimester procedure that the four dissenters (including moderately pro-abortion-rights Justice Anthony M. Kennedy) found disturbingly close to infanticide.

Athough sampling errors can skew any poll, this survey was consistent with many earlier ones that show wide public disapproval of the procedure. In addition, a Los Angeles Times poll in mid-June found that 65 percent of those responding (including 72 percent of the women) said that after the first three months of pregnancy, abortion should either be banned or allowed only in cases of rape, incest, or to save the woman’s life. This finding suggests disagreement with the breadth of the 1973 Roe vs. Wade decision’s recognition of an almost unlimited right to have an abortion during roughly the first six months of pregnancy, and a right to abort even a viable fetus up until the end of pregnancy if a doctor finds it necessary to protect the woman’s emotional or physical health.

This and other polls suggest that the Court is more liberal than the public on abortion. To be sure, the data show considerable public ambivalence and some logically inconsistent responses to differently worded questions. While the Newsweek poll found by 62 percent to 31 percent that respondents wanted any new Justices to uphold Roe and continue "protecting a woman’s right to an abortion," the Los Angeles Times survey found that only 43 percent of respondents expressed support for Roe, down from 56 percent in 1991.

Such disparities may reflect some confusion about exactly what the Court actually did in Roe, and what would happen if the decision were overruled. Small wonder, when journalists such as Time’s Eric Pooley tell their readers that by "overturning Roe vs. Wade," a more conservative Court would "ban abortion." In fact, no Justice in history has suggested that he or she would ban abortion. As all scholars and most journalists know (but rarely say), overturning Roe would ban nothing, but rather leave it to elected officials to decide how (if at all) to restrict abortion. And most states would continue allowing fairly broad abortion rights.

• Religion. Six Justices seem far more liberal than the public on school prayer and closer to the center on aid to religious schools: Respondents to the Newsweek poll disagreed by a whopping 68 percent to 29 percent with the 6-3 decision on June 19 that public school districts cannot promote prayer before high school football games. This is in keeping with polls going back to 1962, when the Court first banned state-sponsored prayer in public school classrooms. Respondents were almost evenly divided on another 6-3 ruling, the June 28 decision allowing use of taxpayer money to buy computers and textbooks for religious and other private schools.

• Affirmative action preferences. Polls consistently find majorities both against racial "preferences" and in favor of "affirmative action." One reason is that "affirmative action" is broad enough to include a range of nonpreferential efforts to remedy a legacy of racial oppression and discrimination. Meanwhile, many major news media have virtually banished the once-common phrase "racial preferences" in favor of "affirmative action."

But preferences are the only kind of affirmative action that anyone on the Court has ever sought to strike down. Four Justices appear ready to void most or all governmental affirmative action preferences; four would uphold most of them; and Justice Sandra Day O’Connor is in the middle. She has held that such preferences are unconstitutional unless "narrowly tailored" to further a "compelling governmental interest," but has left the door open enough for thousands of federal, state, and local preference programs to continue.

The Newsweek poll sought to avoid loaded terminology by asking people whether they would prefer any new Justices to rule in favor of, or against, "allowing affirmative action preferences for things like jobs, government contracts, and school admissions based on race." Fifty-two percent said against, 36 percent in favor. This seems to put the Court in the center or marginally to the left of the public.

• Gay rights. Newsweek poll respondents did not want any new Justices to allow "groups to exclude gays and lesbians if they feel homosexuality is morally wrong," by a tally of 46 percent to 41 percent. This is consistent with the June 28 assertion by Justice John Paul Stevens and the three other more-liberal justices (in dissent) that public attitudes toward homosexuality are changing.

But when asked about the 5-4 ruling by the more-conservative Justices that the Boy Scouts of America has a constitutional right to block gay men from becoming troop leaders, respondents agreed by 56 percent to 36 percent. What explains this apparent inconsistency? Perhaps the results reflect the popularity of the Boy Scouts. Perhaps some respondents agreed with Chief Justice William H. Rehnquist’s holding that having gay scoutmasters would "force the organization to send a message, to youth members and the world, that the Boy Scouts accepts homosexuality as a legitimate form of behavior." Perhaps some agreed with one Steffen N. Johnson’s assertion in a June 30 New York Times op-ed that "it is not a civil right to assist in raising other people’s children."

The decisions that can most aptly be called "conservative" are those curbing federal power over the states and over local matters traditionally regulated by the states. All of the rulings have been by 5-4 conservative-liberal tallies, and have been more solicitous of states’ rights than the Court had been in decades. But it is hard to compare this line of decisions with public opinion, because no polls have shed much light on attitudes about the complex debate over federalism.

Am I adding a political spin of my own here? Perhaps I should disclose some views: I would support fairly broad abortion rights were I a legislator. My Oct. 9 column (which, on reflection, I am not sure was right) argued that laws against partial birth abortion made no sense. The Boy Scouts deserve harsh criticism (but not legal penalties) for excluding gays. The Court has been right (albeit sometimes unduly sweeping) in striking down state-sponsored school prayer. I support affirmative action preferences in college admissions for promising low-income students, and I am sympathetic to cautious promotion of racial-as well as religious and political-diversity in choosing among equally qualified applicants. The more-conservative Justices have gone too far for me in some states’ rights cases, and have done too little to ensure fairness to indigent criminal suspects and defendants, especially those who are black, Hispanic, or facing the death penalty. And I have a hard time making up my mind about a lot of things.

But not everything. I am quite confident that respondents to the Newsweek poll came a lot closer to the mark than many journalists and law professors when asked: "Judging by its recent decisions, do you think the Supreme Court is generally liberal, generally conservative, or is making decisions more on a case-by-case basis?" Seventeen percent chose "liberal," 13 percent chose "conservative," and 61 percent chose "case-by-case basis."

None of this is to suggest that the Justices should consult public opinion in the way that elected officials routinely do. One credo of liberal jurisprudence for more than 50 years, and it’s something I agree with, has been that the Court has a special mission to protect traditionally disadvantaged minorities against the tyranny of the majority. But news organizations purport to have a special mission of their own: to tell their readers and viewers where the Court is-not just what they don’t like about it.