Supreme Court’s Fragile Majority

Former New York Times Supreme Court reporter Linda Greenhouse speculated in a column this week that the Supreme Court’s conservative Justices are “in a hurry,” as evinced by the Court’s choice of cases – specifically, two involving affirmative action (Fisher v. Univ. of TX and Schuette v. Coalition to Defend Affirmative Action) and one religion (Greece v. Galloway).  The reason for the hurry, she believes, “can be found in the faint but resonant drumbeat of conservative concern about the stability of the Roberts Court’s narrow conservative majority.”

We share Greenhouse’s observation that

“Most uninformed commentary on the future of the Supreme Court … has focused on Justice Ruth Bader Ginsburg, who just passed her 80th birthday … obscur[ing] the fact that the conservative justices are growing old at exactly the same rate.”

In fact, Greenhouse cites Committee for Justice president Curt Levey’s March 2013 op-ed as an example of the “faint but resonant” concern about one of the five center-right Justices leaving the bench:

“Curt Levey, a prominent conservative commentator, took the occasion of Justice Scalia’s birthday to observe, in a Fox News op-ed, that it was entirely likely that at least one of the five conservative justices would leave the bench during the remainder of the Obama presidency. The result, he warned apocalyptically, was ‘a Warren Court redux,’ one that would erase ‘all the strides conservatives have made since the Reagan era in containing judicial activism.’”

We are pleased that Greenhouse is bringing attention to the fragility of the Roberts Court’s center-right majority; there’s nothing to be gained from conservatives lulling themselves into a false sense of security. And we don’t disagree with her characterization of the theme of Levey’s op-ed as “be afraid, be very afraid” (see here for ten good reasons to fear a liberal Supreme Court majority). However, we take issue with Greenhouse’s claim that

“[Levey’s] account of exactly what the court under Chief Justice Earl Warren can be blamed for left a bit to be desired. ‘The Warren Court brought us Roe v. Wade,’ he asserted. In fact, it was the Supreme Court under Chief Justice Warren E. Burger that issued the 1973 abortion decision, with a 7-to-2 majority opinion joined by three of President Richard M. Nixon’s four appointees.”

The problem with Greenhouse’s claim is that it omits context by quoting only a fragment of the following sentence in the Fox News op-ed:

“Named for but outlasting Chief Justice Earl Warren, the Warren Court brought us Roe v. Wade and most of the other judicial excesses decried by conservatives.” (emphasis added)

In other words, Levey explains that “Warren Court” is shorthand for an era of liberal judicial activism on the Supreme Court that OUTLASTED Chief Justice Warren (the length constraints of an op-ed prevented a more detailed explanation).  The era persisted because of Nixon’s inconsistent Supreme Court appointments, which included Warren Burger, arguably ending only after Justices Scalia and Thomas joined the Court.

We say “arguably” because progressives like Greenhouse would contend that it is inaccurate to call a Court with four Nixon appointees “liberal,” and some conservatives would say that the era of liberal activism on the Supreme Court has yet to end.  In fact, many conservatives will be saying that loudly by month’s end if the Court’s decision on the Defense of Marriage Act goes the way we expect.