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Jami FloydBack to OpinionJami Floyd

Red court, blue court, old court, new court

Yesterday was the first Monday in October. So we are into a new term. As with every first Monday and every new term, but especially with a new justice on the U.S. Supreme Court, the great temptation is to look ahead.

It might be just as instructive, however, to look back. For despite all the excitement about Justice Kagan, who becomes the third woman on the current court (only the fourth in history) to wear the robes, she is not expected to change the composition of the court in terms of its jurisprudential leanings.

After officially taking her new position as associate justice, Elena Kagan poses with Chief Justice Roberts on the steps of the Supreme Court on Oct. 1, 2010. Photo: AP/Haraz N. Ghanbari

In the last five years, under the leadership of Chief Justice John Roberts, the man President George W. Bush selected to replace the late William Rehnquist, the court has not only moved to the right, it has become the most ideologically conservative court in modern history. The Roberts court has already significantly curtailed affirmative action and the rights of those accused of crimes, while expanding the right to bear arms and the role of religion in public life.  And this is only the tip of the ideological iceberg.

What happened? The most significant change was the departure of the first woman to serve: Justice Sandra Day O’Connor. She was the swing voter, and by the time she retired, after a quarter century on the bench, it’s fair to say she had moved to the center-right.

That was 2006.

O’Connor’s replacement, Samuel Alito, was much more likely to pull the court to the far right, and he has. Meanwhile, Kagan replaces a liberal, Justice John Paul Stevens, and Justice Sonia Sotomayor steps in for moderate Justice David Souter.

The Alito appointment, therefore, redefined the court as conservative. With his confirmation, the Bush administration repositioned Justice Kennedy at the center of a divided Supreme Court, one rapidly drifting right. (And to think, it might have been Harriet Miers in that seat; or John Roberts himself, but for the twists of fate.)

As Justice Stevens observed before he retired, every one of the 11 justices who have joined the court since 1975 have been more conservative than the justice he or she replaced. Stevens includes himself in that number (with the possible exceptions of Ruth Bader Ginsberg and the two most recent appointees — Sotomayor and Kagan, for lack of records on which to judge).

The departure of O’Connor and the arrival of Alito have already deeply affected the outcomes in some extraordinarily contentious areas of law: campaign spending by business and unions, evidence suppression, abortion and race in college admissions.

I have dared to have the conversation with several justices, some retired, some still on the bench and, of course, Supreme Court justices are loath to admit that they are ever influenced by ideology.  Instead, they insist that they consider only the cold, hard facts and apply objective legal analysis. The idealist in me would like nothing more than to believe that. But then we would see no direct correlation between the political party of the president who appoints the justice and the way that justice votes.  Yet, there almost always is a correlation — at least in the early years.

Of course there are exceptions. And justices — some of them famously — change their views over time.

With Kagan starting her first term, however, all of the justices on the current court do line up ideologically with the president who appointed them; and, with that in mind, the Roberts court is poised to be a lasting legacy of the administration of George W. Bush.

Jami Floyd is a lawyer, an award-winning journalist and a nationally renowned news anchor.


  • Paul Brown

    “It takes a lot of degeneration before a country falls into dictatorship….We should avoid these ends by avoiding these beginnings”
    Sandra Day O’Connor commenting on the Bush Administration at a non-broadcast speech given to George Town University about a month after stepping down.

    Yeah, right on Sandra—except OUT OF YOUR ROBES, that understanding of the dire situation doesn’t mean a whole lot anymore. I know she had her reason for stepping down. I can’t help being disappointed and even angry that she did so at such a critical juncture! The only one I could see really filling the void in SCOTUS today would be Hillary–and she doesn’t seem interested or maybe it would just be too hard a sell.

  • Anonymous

    I have read the for and against rulings on the Citizens United case several times and am appalled at how a set of justices who claim they are not there to make law but to interpert law.
    They are they say also there to correct Laws passed by he House and senate that are constitutionally invalid.
    For this they rely on freedom of speech in the majority opinion, but a corporate entity is Inanimate and by definition cannot speak, but its directors or PAC comittees can and did lobby politicians.
    What they did was in effect to repeal a law that said they must l disclose who they were in offering thier free speech. McCain Feingold legislation amongst others.
    The problem when yo have President s or political committees in the senate deciding whose best politics come into the decision and do not select the best qualified Jurisprudence expert in the nation.
    Solve that and you do not need to talk about Politics influencing the Supreme court. the problem is these guys have toIntepret what the foundinfg fathers meant 200+ years ago and how they would think in today internet and religiously changed world.
    Problem is they don’t they vote ideologically and worse still based on personal relifios views which constitutionally they are not supposed to do!! But boy they do!!
    I mean ROE vs Wade!!
    A lawyerly, politically, religiously decided case if ever there was one driven by a religious right and not the primary right of the Individual granted constitutionally.
    As Constitued and appointed and in its judgments the SCOTUS as of now is seriously flawed in this 21st Century.
    It is time for some sensible updates and new rights and obligations as amendments to the constitution including eliminating the filibuster but forcing debate on real amendments, not rubbish ideas to just delay government of the people for the people and by the people.
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