Restoring Balance To The Supreme Court

John Paul Stevens announced his retirement from the Supreme Court last week. Considering the court has tilted severely to the right for the last 50 years, with 4 of the 5 most conservative Justices in history currently residing on it, some semblance of balance is needed to restore equilibrium.

Republicans Stock Courts With Conservatives

Elections have consequences. Republicans have held the presidency for 28 years out of the last 41, over twice the time the Democrats have presided over the executive branch, and have used this power to shift the balance of the nation’s highest courts severely to the right in order to further their political goals.

Isaiah J. Poole of wrote in 2008,

The right understands the importance of a compliant judiciary in consolidating their political power, and they have made populating the judiciary with like-minded justices a cornerstone of their agenda. As a result, not only are conservatives on the precipice of having a decades-long hammerlock on the Supreme Court, but they have institutionalized a conservative tilt throughout the federal judiciary.

As evident from the appointment chart above, all tiers of the Federal Judicial branch are dominated by Republican appointees.

Digby’s Hullabaloo adds:

The federal bench has been overwhelmingly appointed by Republicans because they’ve held the White House for 20 of the last 28 years. And while there are exceptions, Republican Presidents have used the Federalist Society and conservative legal organizations as a judge factory. Everyone knows this and it’s very clear.

SCOTUS Composition

How conservative is the Supreme Court? By anyones measure, extremely conservative.

William M. Landes and Richard A. Posner of the University of Chicago Law School; National Bureau of Economic Research (NBER), released a comprehensive report on the subject in research titled: Rational Judicial Behavior: A Statistical Study. The compendium (available in pdf format on the abstract linked above), analyzes every decision in the Supreme Court since 1937, and measures the number of times each justices has voted towards one judicial philosophy or another. The results below, demonstrate the fraction of conservative votes in non-unanimous cases from from 1937-2006.

Justice % Con Civil Lib Econ
Thomas 0.82 0.84 0.75
Rehnquist 0.82 0.86 0.63
Scalia 0.76 0.79 0.63
Roberts 0.75 0.77 0.7
Alito 0.74 0.75 0.69
Burger 0.74 0.77 0.61
O’Connor 0.68 0.69 0.65
Powell 0.68 0.69 0.61
Whittaker 0.67 0.68 0.66
Kennedy 0.65 0.67 0.56
Harlan 0.63 0.66 0.56
Vinson 0.61 0.69 0.51
Burton 0.59 0.67 0.48
Minton 0.59 0.71 0.41
White 0.56 0.61 0.38
Stewart 0.56 0.56 0.55
Jackson 0.55 0.59 0.5
Clark 0.53 0.65 0.33
McReynolds 0.52 0.55 0.51
Frankfurter 0.51 0.57 0.45
Roberts, O 0.51 0.55 0.48
Sutherland 0.5 0.43 0.52
Blackmun 0.49 0.5 0.45
Butler 0.48 0.53 0.46
Reed 0.47 0.62 0.34
Stone 0.38 0.51 0.32
Byrnes 0.38 0.52 0.3
Hughes 0.38 0.51 0.32
Souter 0.37 0.36 0.43
Brandeis 0.37 0.49 0.32
Breyer 0.37 0.36 0.45
Stevens 0.34 0.33 0.4
Fortas 0.34 0.34 0.34
Cardozo 0.33 0.8 0.21
Ginsburg 0.31 0.31 0.32
Warren 0.31 0.33 0.26
Black 0.28 0.35 0.19
Brennan 0.27 0.25 0.31
Goldberg 0.25 0.21 0.34
Rutledge 0.25 0.27 0.23
Murphy 0.24 0.29 0.2
Douglas 0.21 0.19 0.25
Marshall 0.21 0.19 0.31

Although there are bound to be various interpretations of these result (for instance, many would not consider John Paul Stevens to be a center left Justice), the data taken as a whole is exhaustive and comprehensive. Note that Sonia Sotomayor is not present on the list, as she did not join the Supreme Court until 2009.

One thing that should stand out immediately is the fact that the most extreme conservatives on the bench over the last 70 years are all recent. Out of 43 Justices, Clarence Thomas, Antonin Scalia, John Roberts, and Samuel Alito rank 1st, 3rd, 4th, and 5th respectively. Let me repeat that, 4 of the 5 most right wing Justices in 3 generations are sitting on the bench today.

Even Anthony Kennedy, the supposed swing vote in the Supreme Court is the 10th most conservative Justice since 1937.

Supreme Court Shift to the Right Over Time

There is a measurable change in the composition of the SCOTUS over time. First of all, let’s just take the entire body of Supreme Court Justices and grade them on curve, disregarding the fact that most judges tend to lean quite conservative compared to the rest of society.

For simplicity sake, we will compare the 43 Justices by breaking them up into 5 sections. Eight Justices in the Far Right and Far Left categories, with nine in Center Right, Moderate, and Center Left. This gives us the following breakdown:

Applying these classifications to a timeline, the following chart is created.

The first thing that jumps off this chart is the shift from moderates to center right to far right over time. The dominant moderates seem to have been replaced by center right Justices in the late 1940′s, and the center right domination seems to have yielded to far right Justices starting in the early 1970′s.

The second thing that becomes clear is that the make up of the current Supreme Court is 4 far right, 1 center right, zero moderate, 3 center left, and zero far left Justices. Again, as Sonia Sotomayor was not included in the data set, it is impossible to place her accurately in here, although based on her history, it might be safe to consider her either a moderate or center left Justice. With Justice John Paul Stevens retiring, that would remove one from the center left category as well.

Stevens, who despite his rating of .34 considers himself a conservative, summed up the situation, “Including myself, every judge who’s been appointed to the court since Lewis Powell has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That’s bound to have an effect on the court.”

He also cited an example of the shift to the far right on the court when discussing the case striking down race-based enrollment policies in public schools, “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” The 1975 Supreme Court had an average rating of 0.49, which is pretty evenly balanced between conservative and liberal members.

The Imbalance of the Supreme Court

This shift to the right on the Supreme Court can also be quantified per year by averaging the conservative/liberal score for each Justice. Since the late 60′s the overall complexion of the court has undergone a dramatic transition.

In the chart above, inverse values have been applied (0.6 would be a court with an overall liberal slant, while, 0.4 would represent a conservative slant). A Supreme Court that was truly balanced in terms of relative judicial philosophy would be at 0.5, or 50% conservative/liberal.

Of course, the Chief Justice holds a great deal of power, so the court presided over by the far left Earl Warren from 1953-1969 had a considerably different complexion than the courts presided over by the far right Chief Justices Warren Burger (1970-1986), William Rehnquist (1987-2005), and John Roberts (2006 and on).

Restoring Balance to the Supreme Court

The average score for the current court is 0.59 (59% conservative), not including Sotomayor. If we remove Stevens, the balance tips to 63% conservative.

Now in order to weigh the complexion of the court, we have to assign some type of arbitrary value to Sotomayor. The evidence on her judicial record indicates that she is certainly neither far right nor far left. Moderate or center left would be a safe assumption, so let’s assign her a value of .4 (40% conservative, 60% liberal).

This would make the current court 57% conservative, and with the removal of Stevens, 60% conservative. As it stands, even if President Obama were to nominate, and the US Congress confirm the most liberal nominee of all time in America, someone with a rating of 0.2 who would vote liberal 80% of the time, the court would STILL be slanted to the right with a rating of .56 (56% conservative).

It is mathematically impossible to restore actual balance to the Supreme Court, regardless of how liberal the new Justice is.

In the above case, it would require not only the appointment of the most liberal Supreme Court Justice in the history of the nation, but a retirement of either Clarence Thomas or Antonin Scalia, and a second appointment of a second most liberal member in history in order to actually balance the Supreme Court. Two very far left, strong liberals the likes of which have never been on the court AND a retirement from a far right Justice are needed to restore equilibrium.

Consequences of an Imbalanced Court

The nation has already witnessed how such a conservatively titled court can bring disastrous decisions to further a political agenda.  The New York Times reported:

Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on Thursday [January 21st] ruled that the government may not ban political spending by corporations in candidate elections.

The  devastating consequences of this conservative judicial activism will be strongly felt this year, as corporate money, including that from foreign corporations is now free to flood political campaign coffers.  Our democracy might now be for sale to the highest bidder.

Without restoring some semblance of balance to the court, the consequences in terms of other issues could be equally as damaging.  There could be ramifications for abortion rights, free speech, pay discrimination, school desegregation, the death penalty, separation of church and state, global warming, LGBT rights, and habeas corpus.