Debunked: The Two Biggest Liberal Myths About the Supreme Court

Posted: Jun 27, 2012 1:55 PM

Progressives have been despondently decrying "a radical change in U.S. politics" brought on by "the activist conservative Supreme Court" that may tear apart the fabric of American society at the seams. Indeed, some are talking about court packing schemes in advance of tomorrow's Supreme Court ruling on Obamacare.

There's a big problem with this left-wing narrative: it's not true at all.

The Roberts Court has actually been one of the least activist courts in the last sixty years. Deference to Congressional law has ruled the day. Law professor Jonathan Adler writes that a New York Times analysis showed "the Roberts Court has overturned prior precedents and invalidates federal at a significantly lower rate than its predecessors." As far as "activism" goes, progressives have little to fear from the Roberts Court. They like to play up the Citizens United case as an important example of activism; but while Citizens United was an important case in which SCOTUS did overturn Congress, that's been the exception, not the rule.

While the Court might have moved to the right in recent years, it's not the fault of the conservative justices. A Mother Jones compilation of charts really highlights this. The rightward shift, if there has been one is primarily the fault of Justices Breyer, Ginsburg and Stevens/Sotomayor's migration away from being hardline liberals. Since 2000, according to Martin-Quinn SCOTUS scores, every member of the left-leaning side of the Court has come significantly closer to the center.

The two biggest explanations, according to this analysis, is that the jump from Souter and Stevens to Sotomayor and Kagan has significantly moderated the Court, and that Anthony Kennedy has gotten moderately more conservative in the last four years. That's your evidence for the supposed "most conservative court ever" - and you could easily say that both Kagan and SOtomayor do not have enough of a record to be able to truly judge their jurisprudence.

No matter what happens tomorrow, remember that the two biggest liberal complaints about the Court are simply wrong. The Roberts Court has been one of the least activist courts in decades, and it's the fault of the Court's liberals that there's been any, if any, rightward shift.