Government and Politics


The Roberts Court

Robert Singh


Robert Singh examines the 2010-11 term of the US Supreme Court and asks whether a twenty-first century constitutional conservatism has now replaced the liberal activism of the mid-twentieth century.




During his confirmation hearings before the US Senate Judiciary Committee in 2005, John Roberts vowed to bring 'no agenda' to the job of chief justice of the USA. Promising a minimalist approach to constitutional interpretation, he compared his way of interpreting the law to an 'umpire calling balls and strikes'. But, after 6 years of what some critics regard as deeply biased umpiring resulting in 'embarrassingly bad decisions' (R. Dworkin, New York Review of Books, 26 May-8 June 2011, pp. 40-41), his court's calls appear heavily tilted to conservative batters in rulings on abortion, gun control, affirmative action, campaign finance, criminal sentencing and capital punishment.


In its most recent term, the Roberts Court (i.e. the Supreme Court under John Roberts) blocked the USA's largest ever sex discrimination case, rejected the appeals of former Iraqi detainees who claimed abuse at Abu Ghraib, and struck down an Arizona law giving extra cash to publicly funded candidates facing privately funded rivals.


Since the liberal Warren Court (1953-69), conservatives have condemned judicial activists who overturn established precedent and read into the Constitution rights not expressly there. In refusing to defer to elected branches of government and interpreting the Constitution's clauses expansively rather than narrowly - instead of exercising restraint - unelected judges illegitimately imposed their own values in place of the Constitution's framers and the people's representatives: Congress and the president. In theory, though, judicial activism could have either liberal or conservative outcomes, depending on which precedents and laws are overturned. (The conservative court that struck down Franklin D. Roosevelt's New Deal laws from 1933-38 was definitely 'activist' in that sense.)


With the steady appointment of conservative jurists to the federal courts since 1981, has a twenty-first century conservative activism now replaced the liberal activism of the mid-twentieth century? Or, in the absence of a clear majority consensus, must a relatively restrained but predominantly conservative court necessarily reflect and reinforce the broader polarisation of contemporary US politics?


Table 1 - The Roberts Court, 2010-11
Justice Year of birth Date of appointment Appointing president Judicial politics
John Roberts (Chief Justice)? 1955 2005 George W. Bush? Conservative
Antonin Scalia 1936 1986 Reagan Conservative
Anthony Kennedy? 1936 1988 Reagan Con/Swing
Clarence Thomas 1948 1991 George H. W. Bush Conservative
Ruth Bader Ginsburg 1933 1993 Clinton Liberal
Stephen Breyer 1938 1994 Clinton? Liberal
Samuel Alito 1950 2006 George W. Bush? Conservative
Sonia Sotomayor 1954 2009 Obama Liberal
Elena Kagan 1960 2010 Obama Liberal


The 2010-11 term: déjà vu all over again

Since, as Table 1 shows, the Roberts Court comprises a generally reliable conservative majority, the fact that it has issued mostly conservative rulings is not especially surprising. In that respect, the most recent term displayed four traits familiar to court-watchers:


1. Not all court terms are equal. In a rather unremarkable session, while the court did not issue the type of landmark decisions like Roe v Wade (1973) that so agitate opponents of judicial activism, it nonetheless issued important rulings on varied and contentious topics (Table 2).


2. While many rulings favoured conservative outcomes - especially where corporate interests were concerned - this was not uniformly so. On the 1st Amendment Snyder and Brown cases, for example, free speech protections were extended to conduct that most conservatives strongly oppose.

3. When the court is ideologically divided, Justice Kennedy typically decides whether the conservative or liberal bloc emerges victorious. As Table 3 shows, in the most recent session, one-fifth of the cases were 5-4 decisions, of which almost 90% were ideological divisions pitting the four conservatives against the four liberals. Of these, 71% went the conservative way thanks to Kennedy's vote.

4. As Table 4 illustrates, when the court is most divided, conservative justices are in the majority at rates almost twice as frequent as liberals, confirming where the centre of political gravity lies in the Roberts Court.


Declining judicial activism, increasing constitutional conservatism

Far from a new conservative activism, the Roberts Court has overturned precedent and struck down laws as unconstitutional - the two key measures of judicial activism - less often even than its relatively restrained predecessors. The Roberts Court issued conservative decisions 58% of the time in its first 5 years across all cases. The Burger and Rehnquist courts issued conservative rulings at virtually the same rate: 55%. That represents a sharp break from Warren, which issued conservative decisions only 34% of the time.


The relative lack of judicial activism across all four courts is striking. Less than three precedents were overturned per term, on average, and the Burger Court struck down more laws on average than did Warren. But Roberts has been far more conservative when it has been activist. The Rehnquist Court overruled 45 precedents over 19 years; 60% of those decisions reached a conservative result. The Roberts Court overruled eight precedents in its first 5 years, a slightly lower annual rate; yet all but one reached a conservative result.


The current court is more conservative than its predecessors overall but decidedly so when it comes to non-unanimous decisions and key rulings. Four of the six most conservative justices to sit on the court since 1937 do so now (Roberts, Alito, Scalia and Thomas) and the 'swing' justice, Kennedy, is also one of the ten most conservative in 74 years. But its conservatism remains far from uniform - especially on free speech, the war on terror, and separation of powers questions - and its activism is limited and selective, albeit highly consequential.


Table 2 - Nine major cases from the 2010–11 term
Case and ruling Brief details
Military funerals | Snyder v Phelps (8-1) The court's most conservative and liberal justices joined in ruling that the 1st Amendment protects an extremist church's anti-gay protests at military funerals. Freedom of expression is so central to the nation that it protects cruel and unpopular protests, even at the moment of a family's most profound grief.
Access to DNA evidence | Skinner v Switzer (6-3) In ruling for a Texas death row inmate, Henry Skinner, who claimed that he had not killed his girlfriend and her two sons, the court established a legal avenue for prisoners to seek access to DNA evidence that might prove their innocence.
Tax credits for religious schools | Arizona Christian School Tuition Org. v Winn (5-4) In rejecting a lawsuit against an Arizona tax-credit program that assists private schools, the court made it harder for taxpayers to litigate against government programmes that aid religious organisations.
Overcrowded prisons | Brown v Plata (5-4) A divided court ordered California to reduce its overcrowded prisons by more than 30,000 inmates, arguing judges must get involved when conditions are 'incompatible with the concept of human dignity'. The court upheld a lower court's finding that California's prison conditions violate the Constitution's prohibition on cruel and unusual punishment.
Employing undocumented workers | Chamber of Commerce v Whiting  (5-3) The court ruled that Arizona may revoke the business licences of companies that knowingly employ undocumented workers - rejecting arguments that control over illegal immigration is a federal responsibility and endorsing narrowly drawn state efforts to regulate the employment of illegal aliens.
Child suspects | J.D.B. v North Carolina (5-4) The court ruled that police must be sensitive to the age of child suspects when deciding whether to inform them of their Miranda right against self-incrimination. Writing for the majority, Justice Sotomayor described the ruling as a 'commonsense' application of prior findings that children are not 'miniature adults' and should be treated differently. The dissenting conservative minority claimed the majority was 'embarking on a new expansion' of suspects' rights.
Sex discrimination | Wal-Mart v Dukes (9-0) Ruling for Wal-Mart, the court blocked the nation's largest ever sex discrimination case. As many as 1.5 million current and former female workers could have participated in the class action suing Wal-Mart, the company facing the possibility of owing billions of dollars in back pay. But the court ruled that the women had not proved they had suffered from a common policy of discrimination - a decision posing major hurdles for other class-action suits brought against big corporations.
Violent video games | Brown v Entertainment Merchants Assoc. (7-2) The court ruled unconstitutional California's attempt to ban the sale of violent video games to minors (under 18), upholding a lower court's decision that California's attempt to impose a $1,000 fine on those who sell or rent violent video games to minors violated free speech rights.
Campaign finance | Arizona Free Enterprise v Bennett (5-4) In the latest decision that the right of political speech trumps government's attempts to restrain the power of money in elections, the court rejected Arizona's system of providing 'matching funds' to candidates who face big-spending opponents or opposition groups. The court said the law acts to discourage candidates and independent organisations from spending money to further their political speech.


Source: US Supreme Court (



Table 3 - 5–4 majority cases (2000/01–2010/11)
Term Number of 5-4 opinions % of total opinions % of 5-4 split ideological Conservative victory* (% of ideological 5-4) Conservative victory* (% of all 5-4)
2000-01 26 31% 85% 64% 54%
2001-02 21 26% 57% 67% 38%
2002-03 15 16% 67% 60% 40%
2003-04 21 24% 76% 63% 48%
2004-05 24 20% 50% 42% 21%
2005-06 11 12% 73% 63% 45%
2006-07 24 33% 79% 68% 54%
2007-08 12 17% 67% 50% 33%
2008-09 23 29% 70% 69% 48%
2009-10 16 18% 69% 73% 50%
2010 -11 16 20% 88% 71% 63%
Average 19 22% 71% 63% 45%


*A ‘conservative victory’ occurs whenever the majority consists of Chief Justice Rehnquist or Roberts, O’Connor or Alito, Scalia, Thomas and Kennedy.





Table 4 - Membership in a 5–4 majority (2006/7–2010/11 terms)
    Percentage of frequency in 5-4 majorities
Justice Frequency in majority 2010-11 2009-10 2008-09 2007-08 2006-07
Kennedy 14 cases 88% 69% 78% 67% 100%
Thomas 12 cases 75% 69% 65% 67% 61%
Scalia 11 cases 69% 69% 70% 58% 58%
Roberts 10 cases 63% 56% 48% 58% 67%
Alito 10 cases 63% 56% 48% 58% 67%
Ginsburg 6 cases 38% 25% 52% 50% 33%
Sotomayor 6 cases 38% 43% -    
Kagan 6 cases 38% - - - -
Breyer 5 cases 31% 38% 39% 45% 46%





The Roberts Court: assertive or deferential?

In popular rhetoric, 'activism' means deciding cases based on a judge's policy preferences rather than the law. But while the term is often used pejoratively, to criticise decisions the commentator disagrees with, it is rarely possible to state confidently that the court has engaged in it. Constitutional provisions generating controversial cases tend to involve some important value - equality, for instance, or free speech - but do not inform the court how to apply it in particular circumstances. 'The law' does not provide a clear answer in hard cases. Given this, and since all judges are 'activist' on behalf of certain constitutional values, deciding where judges have rejected law in favour of policy is more art than science.


So how does the court decide a hard constitutional case? The most basic choice it must make is how assertive - or 'counter-majoritarian' - it will be with respect to the other branches of government. Will it defer to their judgement? Or will it press its own vision of equality or free speech against the opposing view of Congress or a state? That ideological stance is what talk of activism typically obscures. The choice is not between devilish activists and angelic umpires but between distinct ideological approaches to judging and the differing ways in which politics and the law interact.


Although the Roberts Court has overturned relatively few precedents and struck down relatively few laws, those it has overturned or struck down have often been - like Warren previously - major and contentious. The Roberts Court has advanced a much more consistently conservative set of outcomes in such cases than its similarly 'restrained' predecessors.

Robert Singh is professor of politics at Birkbeck, University of London, and a leading author on US politics.