Has the court moved right? The mainstream media are quick to proclaim that the Supreme Court is moving radically to the right, but a closer look reveals that the court has quite a way to go before it can be considered truly conservative.

On July 11, shortly after submitting this article, Mr. George Detweiler unexpectedly passed away at his home in Twin Falls, Idaho.

George was a great friend and patriot who, in addition to writing articles for THE NEW AMERICAN in defense of constitutional principles, was also very active in the John Birch Society, this magazine's parent organization. He headed the society's campaign in defense of the Constitution and served on the society's Council and Executive Committee. A successful lawyer, he earned his J.D. at Georgetown University and served as assistant attorney general for the state of Idaho before entering private practice. In "retirement," he devoted much of his time to the freedom fight.

We believe George would want us to publish his final words to us which, as always, were guided by his keen understanding of the Constitution. He will be greatly missed by all of us who knew him. May he rest in peace.--Editor

According to the New York Times, the new "Roberts" Supreme Court has swung significantly to the right since Chief Justice John Roberts and Justice Samuel Alito joined its ranks and liberal-leaning Justice Sandra Day O'Connor departed. In a July 1 article entitled "In Steps Big and Small, Supreme Court Moved Right," the Times' Linda Greenhouse opined, "By the time the Roberts court ended its full term on Thursday [June 28], the picture was clear. This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small."

"It was," claimed Greenhouse, "the Supreme Court that conservatives had long yearned for and that liberals feared."

Really? In truth, the Roberts court is not the court conservatives "long yearned for," if by "conservative" it is meant a constitutionalist who values and upholds the original intent of the Constitution, and who opposes judicial activism.

To be accused justly of moving to the right, the court must be shown to have upheld the intent of the Constitution and the protections it offers to individuals and the powers it grants to the states. Using this framework as a guideline, the court's movement to the right is measurable in millimeters--not miles, or even meters. The present Supreme Court reveals a newly formed and tenuous "conservative" alliance led by Chief Justice Roberts, and joined by Justices Clarence Thomas, Antonin Scalia, and Samuel Alito. This grouping is referred to by the Times as the "conservative majority" on the court, though it is not an actual majority and is no larger than the court's supposedly marginalized liberal bloc, which consists of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. What gives the "conservative" bloc its majority clout is that fact that Justice Anthony Kennedy, who has replaced the more liberal Justice O'Connor as being the court's swing vote, often sides with the "conservative" bloc in 5-4 decisions.

But generally speaking the court's decisions have not been precedent-setting. In fact, the Times' Greenhouse readily admitted, "The court explicitly overturned only three precedents, two obscure cases from the 1960s that permitted excuses for missing court filing deadlines and a foundational antitrust decision from 1911 that prohibited manufacturers from imposing minimum retail prices." That's not exactly the massive rollback of activist rulings that "conservatives had long yearned for" and "liberals feared." Greenhouse continued: "Other precedents were left standing, at least for the time being."

A Look at the Record

Let's look now at a few of the decisions of the new court to determine how far to the right it actually moved. In the area of criminal law, Greenhouse cites as evidence of the court's new conservatism: "With the exception of four death penalty cases from Texas ... the prosecution prevailed in nearly every criminal case, 14 of the 18 non-Texas cases." In point of fact, this does not point to a new conservatism, at least in terms of judicial restraint, but to the same old judicial activism. The Supreme Court, after all, presumed to have jurisdiction to render a decision, instead of viewing criminal cases as something to be decided on the state level.

Specifically regarding the four Texas death-penalty cases, the court exhibited the liberal activism of the past--not only by siding with the defendants four out of four times but also by treating those cases as a federal matter. Put simply: the Supreme Court has no actual authority under the Constitution to intervene in state death-penalty cases. But over time, it has presumed jurisdiction upon itself--an egregious abuse of federal judicial power. If the fearless foursome--the "conservatives" on the court--had followed their oaths of office to uphold the Constitution, they would have voted to abandon federal control of the death penalty by the states.

Capital punishment received implicit validity in the Fifth Amendment: "No person shall be held to answer for a capital or other infamous crime, unless...." The rest of the amendment describes the process of indictment by a grand jury. This provision was never explicitly repealed. Therefore, to bypass the Fifth Amendment, increasingly activist justices relied on generalizations in the 14th Amendment to undercut state use of the death penalty. Section 1 of the 14th Amendment declares, in part:

   No State shall make or enforce any law which shall abridge the
   privileges or immunities of citizenship of the United States; nor
   shall any State deprive any person of life, liberty or property,
   without due process of law; nor deny to any person within its
   jurisdiction the equal protection of the laws.

Before adoption of the 14th Amendment in 1868, which was intended to secure the rights of former slaves, the restrictions of the Bill of Rights were viewed as restraints only upon federal authority. But in the decades following adoption of that amendment, it became the vehicle that leftist members of the court opportunistically seized to construct the doctrine of "substantive due process." It is a court-made doctrine entirely beyond the words of the Constitution, which stretches the court's reach to include state actions. The doctrine begins with the "due process" language of the 14th Amendment and constructs upon it an expansion of extra-constitutional powers with which the court presumes to veto or severely restrict state use of capital punishment. The court merely categorizes any state usage of this penalty of which the court disapproves as a denial of due process. For good measure, the court admixes in their decisions a pinch of the Eighth Amendment's prohibition against cruel and unusual punishment. Using this self-delegated "power," the court has presumed to prescribe the methods and details of execution as well as the types of crimes that may be punished by death.

Also, when ruling on federal environmental controls in Massachusetts v. EPA (see Mr. Detweiler's analysis in "Federal Environmentalism" in our July 9 issue), none of the "conservative" justices questioned the constitutionality of the federal Clean Air Act. It was a golden opportunity to declare that the Constitution does not authorize Congress to regulate the environment. Not a single justice addressed that opportunity. In fact, in a 5-4 decision a majority of them concluded that the Environmental Protection Agency not only possessed the authority to regulate greenhouse gases in auto emissions but must regulate those gases unless it provided a scientific basis for not regulating.

The court's 5-4 decision against partial-birth abortion is viewed as a swing to the right. As described by Greenhouse, it represents "a reversal of course and a reframing of the abortion issue." But this ruling must be kept in perspective: it kept on the books a federal law against a form of infanticide (killing a baby while in the process of being born) without challenging the infamous Roe v. Wade decision legalizing abortion on demand.

Another 5-4 decision indicating a swing to the right is the court's ruling that (as described by Greenhouse) "using a student's race to govern the availability of a place at a desired school, even for the purpose of preventing resegregation, violated the 14th Amendment's guarantee of equal protection." Yet, as Greenhouse acknowledged two sentences later in her Times article, "Justice Kennedy, a member of the majority, refused to sign the more far-reaching parts of the chief justice's opinion that would have barred even more general considerations of race." That is, the majority did not bar those "more general considerations of race" even though those justices should be color blind.

Any remarkable rightward shift of the court would require a minimum of one more "conservative" new justice. Two or more would be better. That likelihood is tenuous, depending upon a president who is inclined to make such appointments and a Senate that will confirm them. The prospects for either seem slim.