Supreme Court reporter Adam Liptak's interesting account of studies showing a rightward shift at the Supreme Court, after five years under Chief Justice John Roberts, was played up with a Sunday front-page splash: "The Most Conservative Court in Decades - Under Roberts, Center of Gravity Has Edged to the Right, Analyses Show [1]."
The research is solid, but it's notable the Times considers a statistic-saturated, 3,000-word story on the "most conservative [court] in living memory" to be worth a huge swath of Sunday front-page real estate. Would a Supreme Court shift to the left garner such cautionary coverage? Liptak twice termed the shift to the right of the Roberts' court "modest," which begs the question of the big front-page play.
When Chief Justice John G. Roberts Jr. and his colleagues on the Supreme Court left for their summer break at the end of June, they marked a milestone: the Roberts court had just completed its fifth term.
In those five years, the court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.
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If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections and to elaborate further on the scope of the Second Amendment's right to bear arms. Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes.
The recent shift to the right is modest. And the court's decisions have hardly been uniformly conservative. The justices have, for instance, limited the use of the death penalty and rejected broad claims of executive power in the government's efforts to combat terrorism.
But scholars who look at overall trends rather than individual decisions say that widely accepted political science data tell an unmistakable story about a notably conservative court.
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The Rehnquist court had trended left in its later years, issuing conservative rulings less than half the time in its last two years in divided cases, a phenomenon not seen since 1981. The first term of the Roberts court was a sharp jolt to the right. It issued conservative rulings in 71 percent of divided cases, the highest rate in any year since the beginning of the Warren court in 1953.
Liptak later listed some qualifications, noting "the rightward shift is modest" and that "while the court is quite conservative by historical standards, it is less so by contemporary ones."