The Myth of the Balanced Court

It is how the mainstream media have taught the public to think about decisions by the current Supreme Court. And it is a conceptual scheme that makes it utterly impossible to understand either the Court's current makeup or its recent history.

The Myth of Balance Between Left and Right holds that the Court has a "liberal wing," consisting of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, and a "conservative wing," consisting of Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito, and Clarence Thomas. Justice Anthony Kennedy is the swing vote, the "moderate."

It should be clear, right off the bat, that something is fishy about this picture. Cautious on the lower courts, Ginsburg and Breyer were prescreened by and fully acceptable to Republicans on the Senate Judiciary Committee. Both their votes and their opinions have been far more moderate than those of the great liberal visionaries of the Court's past, such as William O. Douglas and William Brennan. Souter is a Republican appointee. His approach to constitutional law is in the general mold of Justice John Harlan, the great conservative dissenter on the Warren Court. Stevens, also a Republican appointee, was a maverick on the Burger Court, far to the right of three of its members. Contrary to what you hear, Stevens hasn't much changed in the last decades.

Here's a simple way to expose the Myth of Balance. In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.

First we would have to chop off the Court's right wing, removing Scalia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.

Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.

Then we would have to leave Breyer, Stevens, Souter, and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart. (The parallel between White-Stevens-Powell and Breyer-Stevens-Souter is very close; true, Ginsburg is somewhat to the left of Stewart in many domains, but their voting patterns and general approaches are pretty close.)

Finally we would have to assume that Roberts would vote more or less like Rehnquist (which is to say, definitely to the left of Scalia and Thomas) and that Alito would vote more or less like Burger (definitely to the left of Rehnquist).

To say the least, all this would represent a radical change in the Court's composition -- so radical that liberals cannot even fantasize about it. But this radically changed Court would be essentially identical to the supposedly conservative Court of 1980!

Here is another way to demonstrate the point. In 1980 Stevens often operated as the Court's median member; in many cases he (along with Powell) was the Justice Kennedy of that era. But Stevens is frequently described as the most liberal member of the current Court. If he qualifies for that position, it is not because of any significant change in his own approach, but because of a massive shift in the Court's center of gravity.

The consequences are huge, both for constitutional law and for public debate. When Kennedy, rather than Stevens, looks like the moderate, people's sense of constitutional possibilities, and of what counts as sensible or, instead, extreme and unthinkable, shift dramatically. Not long ago, Marshall and Brennan served as the Court's visionaries, offering a large-scale sense of where constitutional law should move. They thought it preposterous that affirmative action should be treated the same as old-fashioned racial discrimination, and their views on that question put real pressure on the Court's center. They wrote in clear, bold strokes against decisions to invalidate campaign-finance restrictions and to restrict access to federal court; their opinions pressed the Court toward moderation on those subjects.

The results of the shift have been momentous. Where once it seemed clear that the Court would generally accept congressional judgments in favor of affirmative-action programs, the Court has now made clear that such judgments will be subject to "strict scrutiny" (and generally struck down). Where once it seemed established that Congress could use its power under the Fourteenth Amendment to give broad protection to liberty and equality rights, now it seems clear that Congress cannot go beyond the frequently narrow views of the Court itself. Where once the issue was whether the right to choose abortion might include a right to federal funding for poor women, now the issue is whether further restrictions on that right will be upheld. Where once the issue was whether the Constitution protected the right to education, it is now plain that the Constitution will not be understood to create "affirmative" rights.

A widely unknown fact: Between 1984 and 2000, the Court overruled more than 40 precedents, specifically rejecting the law as it was understood in 1980. And on many more occasions, the Court significantly reoriented the law without overruling particular decisions.

Scalia and Thomas are the Court's visionaries today, serving the roles of Marshall and Brennan in an earlier era. Don't be fooled by their rhetoric about "the original understanding." Sometimes they do consult history, but too much of the time, their shared vision looks less like that of the founders than that of the extreme right wing of the Republican Party. Voting a lot like political partisans, they seek an end to affirmative-action laws and campaign-finance restrictions, elimination of the right to choose, greater protection of commercial advertising, much less in the way of separation of church and state, strengthened property rights, and increased presidential power.

A quiz question: Of the nine members of the Court, who have been the most likely to strike down decisions by executive agencies, such as the Environmental Protection Agency, the National Labor Relations Board, and the Federal Communications Commission? Would you be surprised to hear that the answer is Scalia and Thomas? (It is.) And would you be stunned to learn that they were more likely to strike down such decisions made by the Clinton administration than by Republican administrations? (They have been.)

Although Roberts and Alito write cautiously and work within the established categories, their votes in key cases have been indistinguishable from those of Scalia and Thomas. Kennedy, the supposed moderate, usually agrees with them. In contrast, the work of today's supposed liberals is mostly defensive. Fending off attacks on longstanding precedents, they are the Court's literal conservatives.

The upshot of all these shifts is that what was once on the extreme right is now merely conservative. What was once conservative is now centrist. What was centrist is now left wing. What was once on the left no longer exists.

The political right has had a strong interest in downplaying these changes. One way to move the center of gravity is to make the (preposterous) claim that moderate Republican appointees such as Stevens, Souter, and Sandra Day O'Connor are "liberals" who have "betrayed" the presidents who have nominated them. Remarkably, the conservative effort to redescribe the center has succeeded.

I'm not denying that in some areas, the new appointees have been less conservative than some expected or hoped. The Court has not overruled Roe v. Wade; it has rejected the view that the Ten Commandments can be posted on courthouse walls; and it did extend the right of privacy in 2003 so as to forbid criminalization of same-sex relations. But its apparently liberal decisions have been few, narrow, and exceedingly cautious.

Nor am I saying that the liberals of the Court's past were correct in their view of the Court's role. On the contrary, the Court does best if it proceeds cautiously and incrementally, with respect for the elected branches of government. Marshall and Brennan, no less than Scalia and Thomas, tried to use the Constitution to impose a contestable political vision on the nation. For the future, the preferable route was charted by underrated justices such as Felix Frankfurter and Byron White -- excellent lawyers who worked within established categories and were reluctant to strike down acts of elected officials, above all Congress.

But both the Court and the nation benefit from a range of views and approaches, and something has gone badly wrong if the Court has a strong right wing without any real left. Things are worse still, and even a bit bizarre, if the Court's distinguished moderates, generally operating in the same tradition as the conservatives of the Court's past, are seen as the left-wingers. What makes the revolution on the Court so unusual, and so stunningly successful, is that most people have not even noticed it.