NCPA - National Center for Policy Analysis

Left Right, Left Right, Rehnquist Court Marches On

July 6, 2001

Is the U.S. Supreme Court under Chief Justice Rehnquist as conservative as some commentators claim? It's not that easy to classify the court ideologically, says Tunku Varadarajan.

  • There are cases in which liberals regard the court as excessive -- Bush v. Gore or University of Alabama v. Garrett, in which the court held that states are immune from job discrimination suits under the Americans With Disabilities Act.
  • But there are others from which liberals can take comfort -- such as Whitman v. American Trucking Associations, on the Clean Air Act, and Federal Election Commission v. Colorado Republicans, which upheld party spending limits on campaigns.

The court's record does not reflect the ineluctable result of conservative bias.

  • Of the 79 cases it decided this term, 26 were by 5-4, prompting claims of a closely divided court with a slim conservative majority.
  • Yet of these cases, only 14 -- 17.5 percent of the court's total caseload -- were decided by a conservative 5-4 majority -- meaning Rehnquist-Scalia-Thomas-O'Connor-Kennedy vs. Breyer-Ginsburg-Souter-Stevens.
  • Of the 12 remaining 5-4's, there were eight in which the four liberals were able to sway one other justice to their side -- including two Fourth Amendment cases.

Moreover, according to Linda Greenhouse's lengthy analysis in the New York Times -- dissents from Justices Scalia (19) and Thomas (18) were almost as frequent as those from Justices Breyer (23) and Ginsburg (21). Justice Scalia was in a minority in a quarter of all cases decided by the court, indicating the "conservative" position did not prevail.

Far from being reflexively conservative or "ideological," this court is a model court, meaning that its record does not lend itself to simplistic labels of "left" or "right."

Source: Tunku Varadarajan, " This Honorable Court," Citizen Of The World, OpinionJournal.Com, Wall Street Journal, July 3, 2001.

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