The Roberts Court

                An understanding of the judiciary would not be complete without an examination of the current Supreme Court. On September 29^th 2005, John Roberts took the constitutional oath of office. Roberts had been nominated by George W. Bush after the death of Chief Justice William Rehnquist. Bush nominated Roberts on the assumption that he would adopt a fairly conservative stance as Roberts had worked in the Department of Justice and the Attorney General’s office under successive Republican administrations. After receiving the consent of the upper chamber, John Roberts became the seventeenth Chief Justice in our nation’s history.

                In terms of its ideological character; the Roberts Court is widely considered to be more conservative than the Rehnquist Court because Sandra Day O’Conner (who had an ideologically moderate voting record) was replaced by Samuel Alito (who has a fairly conservative voting record). However, this is not to say that the Court has made a dramatic shift towards the right. Instead, the Roberts Court have taken an incremental shift towards the right of the political spectrum. There are several examples to back-up this argument from judgments made on the second amendment, the eighth amendment, the regulation of campaign finance and to some extent abortion. Let us briefly consider each in turn.

                In terms of the second amendment, the Heller judgment was certainly consistent with a conservative outlook. Liberals were understandably dismayed by the decision that an individual has the right to own a firearm, whereas conservatives and the NRA were naturally pleased by the ruling. In terms of the eighth amendment, the Roberts Court ruled in Baze v. Rees (2008) that execution via lethal injection was constitutional. The case was brought to the court’s attention in the context of the death penalty in Kentucky. The case held nationwide significance because the manner in which lethal injection is imposed in the bluegrass state is used throughout most of the union. As with the Heller case, the ruling was welcomed by conservatives.

                As discussed previously, the Roberts Court ruled in the Citizens United case that corporations were entitled to the same first amendment rights as individuals (although the decision that corporations should hold constitutional rights actually dates back to the Santa Clara case of 1886). As such, the campaign finance regulation implemented by Congress on a bipartisan platform was ruled to be unconstitutional. The decision was consistent with the fiscal conservative view that the government should adopt a laissez-faire approach to such issues. It was a controversial and highly charged judgment because it applied the first amendment in much broader manner than many would have liked. Conservatives have for many years bemoaned the fact that judicial activism leads towards judges legislating from the bench. However, there were largely welcoming of the Citizens United ruling.

 

                Finally, social conservatives have been cheered by the Chief Justice seeming to indicate that an overturn of Roe v. Wade (1973) might be possible. Roberts is a strict constructionist and this particular approach certainly provides the opportunity for the Court to overturn Roe if the circumstances arise. There are certainly a great many pro-life pressure groups who have both the resources and the motivation to bring a case forward to the attention of the judicial branch. Roberts has also said that “stare decisis is not an end in itself” - which means that the Court might be able to overturn an activist decision such as the aforementioned Roe v. Wade ruling. Whilst Roberts did not reference the Roe judgment as such, it is difficult to escape the conclusion that he had the ruling at the back of his mind when making these comments.

                There are two fairly consistent voting blocks on the Roberts Court. The liberal bloc consists of Ginsburg, Sotomayor, Kagan and Breyer whereas the conservative bloc consists of Scalia (who passed away in February 2016), Thomas, Alito and Roberts himself. As one might expect, the liberal appointments derive from Democrat Presidents (Obama and Clinton) whereas the conservative appointments derive from Republican Presidents (both Bushes and Ronald Reagan). The swing judge of course is Anthony Kennedy. Neither block can wholly rely upon Kennedy to side with them. As such, both the liberal and conservative bloc must be fairly cautious in how they operate. In previous years, both sides have been able to push forward their particular agenda safe in the knowledge that they held a clear majority on the bench. Frankly, that is simply not the case at the present time. That said; many of the rulings taken by the Roberts Court have pleased the conservative side more than the liberal perspective. Kennedy himself has sided with the conservative group more often than he has with the liberal bloc since Roberts took over.