Case study The conservative agenda of the Roberts Court
Is the Robert's Court ideologically conservative or judicially conservative?
There have been a number of 5-4 cases that have angered liberals. In DC v Heller 2008 the court departed from judicial precedent, stating for the first time in its history that the 2nd amendment gave individuals (as opposed to those joining militias as a form of protection of state power) the right to bear arms. This overturned gun laws favoured by liberals, in which handguns were banned from homes. The Court's conservative credentials were further established in Citizens United v FEC 2010 and McCutcheon v FEC 2014. These cases overturned Congressional restrictions on the use of money in US elections, making it easier for the wealthy to donate unlimited dollars. One of the most controversial rulings was Shelby v Holder in 2013, which undid some of the major aspects of the civil-rights movement by critically undermining the Voting Rights Act. This means that states cannot be checked by the federal government to ensure that their voting practices are not discriminatory. According to the NAACP, this ruling has led to an explosion of restrictive practices in the 2016 elections.
Conservatives have been disappointed and in some cases angry at some of the most important decisions made by the court. In NFIB v Sebelius the court was given an opportunity to review Obama's Affordable Care Act with only four of the conservative justices arguing that it restricts state power, breaking the interstate commerce clause. Chief Justice Roberts, interpreted the act as constitutionally acceptable because the health care provision was a form of tax, which Congress had the right to impose. The four liberals also ruled in favour of the Act but for different reasons, meaning the court upheld Obama's flagship policy. This show how Roberts was both avoiding a difficult political issue i.e. he aims to be an umpire not a player. . In Obergefell v Hodges 2015 the court issued a landmark liberal ruling by stating that gay rights were protected by the 14th amendment.
In a 6-3 decision, the Supreme Court said federal law, which prohibits discrimination based on sex, should be understood to include sexual orientation and gender identity. It was the first decision on LGBT rights since the 2018 retirement of Justice Anthony Kennedy, the Republican appointee who became an unlikely advocate of gay rights on the court and wrote majority opinions in all four of its major gay rights decisions. Bostock v Clayton County
In 2020 the court refused to hear objections to the election brought by Trump's legal team- again disappointing the conservatives.
The appointments of Brett Kavanagh and Amy Coney Barrett to replace Anthony Kennedy and Ruth Bader Ginsberg appear to have given the court a conservative 6 to 3 majority. This is the culmination of a project begun by Ronald Reagan and continued under subsequent Republican presidents- George Bush, George W Bush and Donald Trump. It had long been the hope and expectation of many conservatives that a conservative majority would see a court which would reverse the liberal decisions of the Warren and Berger Courts.
January 2021 In an early indication of the influence of justice Barrett The US supreme court reinstated a requirement that women visit a hospital or clinic to obtain a drug used for medication-induced abortions, lifting an order by a lower court allowing the drug to be posted or delivered during the coronavirus pandemic. The supreme court chief justice, John Roberts, said the dispute was not generally about the right to abortion but rather courts’ deference to government decisions related to the pandemic.
While conservatives watch with anticipation and liberals with trepidation, it may be that the reason things may not turn out to be as expected or feared are Conservative judges are not the same as conservatives politicians. A politician is openly guided by ideology- they have a view of how the world should be and a set of values or beliefs which guide their policy decisions. Judges are still human and undoubtedly have personal views, biases and political beliefs but the law provides certain practices and doctrine which are designed to mitigate against personal bias in judges. First they must adhere to the law. Where the law is clear their hands are tied. Second the doctrine of Stare Decisis or 'let the decision stand' and has its origins in 18th Century British jurisprudence, means that judges should be guided by past decisions and precedent. Third conservatives tend to adhere to the view that judges should in general keep out of politics- the doctrine of Judicial Restraint inclines conservatives justices to leave decisions to elected politicians or lower courts. Justice Scalia would assert that his disagreement with liberal decisions such as Roe v Wade had nothing to do with ideology or personal belief but instead was a conviction that issues such as abortion were not matters for judges to get involved in.