Redefining the Center

Liberal Decisions From a Conservative Court

A A A Comments By Sanford Levinson Tuesday, Jul 1 2003

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All of the justices are more than happy to push their visions of what would "establish Justice" and bring about a "more perfect Union," however much they disagree about the particulars. In recent years, conservatives have generally prevailed; last week, the stars were aligned for a series of liberal decisions (written by members of the generally conservative majority). The common motif, though, is a highly self-confident group of judges unafraid to exercise their power.

Even the court's willingness to look more carefully at the administration of capital punishment can be understood in the context of increasing public concern about the kinds of problems that led former Republican governor George Ryan of Illinois to lead the calls at least for moratoriums on, if not (yet) outright abolition of, capital punishment.

Illustration by Hugh Syme

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Sanford Levinson teaches at the University of Texas at Austin Law School. The co-editor of a leading casebook in constitutional law and co-author of The American Supreme Court, he has also written Constitutional Faith and Wrestling With Diversity (forthcoming, fall 2003). He was visiting professor at the NYU Law School in 1999-2000.

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Since Tushnet wrote his book, divided government has ended, though only by the slimmest of margins. One might, then, regard last week's decisions as a last gasp of moderation before a conservative tide of new Bush appointees, selected to reinforce the now more isolated Scalia and Thomas, adopts the political agenda of the New Right. But even if Bush wins in 2004 and Republicans retain the Senate, he might hesitate to appoint judges likely to overturn decisions that enjoy significant support among many Republicans (including, as in the case of the CEOs, major contributors to the Republican Party). And, of course, Democrats are actively signaling a willingness to do whatever it takes to prevent a New Right takeover of the judiciary.

The battle will undoubtedly continue, the two constants being first that neither side truly wishes a judiciary that is restrained across the board and second that the court, as Peter Dunne suggested a century ago, is always attentive to general cultural developments—and election returns.

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