Do My Students Know This?

In the warm-up to an excellent essay about styles of Supreme Court jurisprudence, U.Chicago Prof. Geoffrey R. Stone recites some basic truths that seem utterly lost on most of the US press. And I have to wonder how many law students today understand that the Supreme Court today is a reactionary court.

The University of Chicago Law School Faculty Blog: Constitutional Vision The current Supreme Court is not “balanced” in any meaningful sense of that term. It is, in fact, an extremely conservative Court – more conservative than any group of nine Justices who have sat together in living memory. Here are some ways of testing this proposition:

  • Seven of the current nine Justices were appointed by Republican presidents.
  • Twelve of the fourteen most recent Supreme Court appointments have been made by Republican presidents.
  • Four of the current Justices are more conservative than any other Justice who has served on the Court in living memory.
  • The so-called “swing vote” on the Court has moved to the right every single time it has shifted over the past forty years, from Stewart to Powell to O'Connor to Kennedy.
  • As Justice Stevens recently observed, every Justice who has been appointed in the past forty years was more conservative that the Justice he or she replaced.
  • If we regard Warren, Douglas, Brennan, and Marshall as the model of a “liberal” Justice, then there is no one within even hailing distance of a “liberal” Justice on the current Supreme Court.

In fact, the current Court consists of five conservative Justices, four of whom are very conservative, and four moderate Justices, one of whom, Ginsburg, is moderately liberal. As Justice Stevens recently observed, it is only the presence of so many very conservative Justices that makes the moderate Justices appear liberal. But this is merely an illusion.

My own views are probably somewhere between Justice Stevens's and Justice Brennan's, but whatever your views, this must surely be recognized as a factually accurate description of the current Supreme Court.

By the way, I do recommend the entire essay — that was just the warm-up.

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