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The Supreme Court is by design a conservative institution in the original meaning of the word: “a conservative is one marked by or relating to traditional norms of taste, elegance, style, or manners.” In other words, one who is opposed to change. The Supreme Court is inherently conservative because each Justice is allowed to serve as long as they live. If the average age of a Justice when appointed was 55, and each served out her normal life expectancy, then the average term for a male Justice would be 25 years and the average term for a female Justice would be 28 years.
This has indeed been the case since 1980. The average term for a Justice who was nominated in 1980 or afterwards and concluded their term has been 22.5 years (O’Conner 25; Scalia 30; Kennedy 30; Souter 19; and Ginsburg 27). Thus, in 2008, as the country entered the Obama Administration, the Supreme Court had three Justices appointed by President Reagan (Kennedy, O’Connor and Scalia), one by the elder Bush (Thomas), two by Clinton (Breyer and Ginsburg), and three by the younger Bush (Souter, Roberts and Alito). Thus, the Obama Administration was faced with a Supreme Court which had six Justices that had been serving an average of 19 years, and whose positions more reflected those of President Reagan than those of President Obama. Given the lifetime appointments of Supreme Court Justices, it will always be true that the positions of sitting Justices will be about twenty years behind the President who appoints new ones. In a time of great and rapid social change, the Court will be well behind the evolving values and mores of the society. Take homosexual marriage. The chart below (from the Pew Foundation) shows the rapid change in American attitudes toward same-sex marriage. In 2001, 35% of Americans were in favor of same-sex marriage, while 57% opposed. By 2019, 18 years later, the positions were reversed. Sixty percent of Americans were in favor, while 31% were opposed
Despite the above, over the last fifty years, the Supreme Court has been less conservative than one would have guessed, considering Republican presidents (including Trump) have appointed 15 Justices while Democratic presidents have appointed just four. This is largely because until Trump, Republicans have appointed Justices who ended up being more centrist than intended or expected.
Take three landmark Court cases since 1970 dealing with social issues in which conservative, Republican-appointed Justices agreed with a more liberal reading of the Constitution.
1971: Reed v Reed: Burger Court barred discrimination on the basis of sex; opinion was unanimous
1973: Roe v Wade: By a 7-2 ruling the Court found a “right to privacy” that made banning of abortions in certain circumstances unconstitutional. In the opinion, authored by Justice Blackmun (a Nixon appointee and a close friend of Chief Justice Burger, and who, in his later years voted more with the liberal justice Brennan than with his mentor Burger), Blackmun wrote, “This right of privacy, whether it be founded in the Fourteenth Amendment‘s concept of personal liberty and restrictions upon state action, as we feel it is, or … in the Ninth Amendment‘s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Few conservatives would agree with this opinion that the Constitution includes an unwritten “right to privacy,” but three of Blackmun’s conservative colleagues –Burger, Powell and Stewart–did.
1996: In Romer v Evans. In a 6-3 decision written by Justice Kennedy, the Court found unconstitutional an amendment to the Colorado Constitution that would have prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize homosexuals or bisexuals as a protected class.
The 2020 Roberts Court. Because Chief Justice Roberts often sided with his Court’s four liberals, there doesn’t seem to be much of a gap between the Roberts Court and public opinion. Jesse, Malhotra and Sen examined eleven 2020 cases and surveyed the public’s attitudes towards the issues in the cases. These issues included abortion rights, LBGQT rights, the electoral college, the president’s ability to shelter his financial records, religious liberty issues and the President’s authority over personnel at regulatory institutions. A summary of their findings is provided in the table below. In eight cases the Court agreed with the (mostly liberal) views of the public, in one case the court disagreed, and the other two have not been finally decided.
What are we to make of this? Clearly, the Roberts Court was much more liberal than one would expect given its 5-4 tilt in favor of the conservatives. In fact, the Chief Justice was the swing vote, siding with the liberals in two of the cases above (an abortion case and a DACA case). But in three other cases concerning President Trump’s ability to protect his financial records and LGBQT discrimination, the Court ruled by either 6-3 or 7-2 in favor of the position favored by the public.
It would seem that it is premature to believe that the replacement of Justice Ginsburg by Justice Barrett means a dramatic tilt to the right and that the Court will ignore the public consensus on important issues, placing the Court at odds with the majority of the American people in cases in which the public seems to have reached a liberal consensus (abortion, LGBQT rights, and the ACA, for example). Of course, that may happen. Perhaps, more ominously, the Court will find itself ruling on election issues to limit the franchise or thwart the electoral will of the American people, but I doubt it.
In any case, the failure of the Democrats to gain control of the Senate leaves them without a mechanism to thwart the Roberts Court unless they are called upon to name a replacement for a Justice. In the meantime the next few years will see whether the new conservative majority marks a sharp divide between the “old” Roberts Court and the “new” one.
