The New York Times on Sunday ran a front page article on the Supreme Court’s conservative direction under Chief Justice John G. Roberts Jr. The article was spread over two more pages inside the first section of the paper and contained the austere image of Chief Justice Roberts shown above. The single theme of the article is that the Supreme Court under Chief Justice Roberts’ leadership during the last five years
not only moved to the right but also became the most conservative one in living memory
In reaching this conclusion – no doubt a disturbing one to the progressives running the Times – the reporter, Adam Liptak, refers to an analysis of various sets of political science data that purport to assign ideological values – liberal or conservative – to Supreme Court opinions. According to this analysis
the Roberts court has staked out territory to the right of the two conservative courts that immediately preceded it [the Burger and Rehnquist courts]
The biggest reason for the Roberts court’s distinct move to the right, according to the Times article, is the replacement of Justice Sandra Day O’Connor by the more conservative Justice Samuel A. Alito Jr.
Justice O’Connor had become a left-of-center swing vote in close cases. With her departure, Alito joined the more consistently conservative bloc, which also included Justices Roberts, Scalia and Thomas. The new swing vote belongs to Justice Kennedy, who has been classified as right-of-center.
The Times’ purpose in running this lengthy but hardly remarkable story is most likely to scare its readers into thinking that the Supreme Court’s conservative direction is a dangerous departure from mainstream judicial thinking. After all, says the Times, not even the Burger and Renquist courts went this far to the right.
There is only one problem with this wayward court angle in the Times‘ reporting. It is undercut by the graph on the last page of the story, which I have reproduced below:
The lines at the right rate the ideology of each justice’s decisions over time, based on a comparison of all of the justices’ voting records. The dark line shows the ideology of the median justice, who is often the swing voter in 5-to-4 decisions.