The likely Senate confirmation of Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens will not change the ideological leaning of the high court’s majority. The majority’s leaning, however, is increasingly out of step with the values and beliefs of most Americans.
Though it is the justices described as conservative who are driving some of the recent landmark rulings, the decisions likely are not embraced by those who value conservative principles such as limited government and individual rights. Instead, the conservative majority is bent on activism — the accusation typically hurled at liberal nominees — as evidenced by decisions that reverse long-standing precedents on privacy, individual vs. corporate rights, and the role of government in regulating guns.
The nature of the court changed markedly with the appointment of Chief Justice John Roberts and Justice Samuel Alito, both nominated by President George W. Bush. Their critics describe them as ideologues — that is, weighing cases not against the body of legal precedent, but against their core principles that are not far removed from a political agenda.
Sen. Al Franken, D-Minn., spoke recently about the court, and asserted that the principle stare decisis — Latin for “to stand by that which is decided” — has been tossed aside by the majority. “I mean, I don’t speak Latin. But unless stare decisis means “overturn stuff,” then maybe it’s time for con-servatives to stop calling other people “dangerous radicals,” he said.
One ruling that stands above others from the Roberts court is Citizens United v. FEC, which essentially enshrined the vague understanding by the court that corporations are entitled to many of the same rights as individuals.
Though his wise-guy tone couches the observation in humor, Sen. Franken hits the core of the matter: “Do they want to undercut abortion and immigration and Miranda rights? Sure. But those are just cherries on the sundae. What conservative legal activists are really interested in is this question: What individual rights are so basic and so important that they should be protected above a corporation’s right to profit? And their preferred answer is: None of them. Zero.”
Another landmark decision is the ruling on the Washington, D.C., ban on handguns. The court ruled in 2007 that the local government could not infringe upon individual rights to gun ownership in an overly broad way. This month the court again ruled against a gun ban, this time in Chicago, prompting this observation from The New York Times: “About 10,000 Americans died by handgun violence, according to federal statistics, in the four months that the Supreme Court debated which clause of the Constitution it would use to subvert Chicago’s entirely sensible ban on handgun owner-ship. The arguments were infuriatingly abstract, but the results will be all too real and bloody.”
Ms. Kagan’s Senate detractors worry she is too liberal. Unless she has the power to convert Justices Roberts, Alito and Scalia, those detractors have little to fret about.