Supreme Court Conservatism

“For a reporter covering the Supreme Court, this is not just a good year, it is a great year, a fabulous year, a genuinely historic year, but funny, it is not,” said National Public Radio’s legal affairs correspondent, Nina Totenberg, during Common Hour.

Totenberg is also the Mueller Fellow for the 2011-2012 year, and was the first Common Hour speaker of the spring semester.

She described a number of important Supreme Court cases, as well as the changes in the political views of the different Justices throughout the years.

She explained the Supreme Court has become much more conservative than it was twenty years ago.

She gave the example of Justice John Paul Stevens, who in the mid-1970s was considered a moderate conservative, but later was viewed as one of the Court’s most liberal Justices. Totenberg explained this was due to the changes in the Supreme Court’s membership, as the Court experienced a shift to the right after Nixon and Bush’s appointments.

Totenberg also explained there were two different types of conservatives on the Supreme Court, as some Justices prefer to conform to a traditional approach and defer to previous rulings, regardless of whether they thought those previous decisions needed to be revised. Others, the activists, were not afraid to draw new lines and question previous Supreme Court decisions.

Totenberg explained the latter Justices would previously have been on the liberal side. However, the members of the Supreme Court who now agree with this ideology are, for the most part, conservative.

“[The prevalence of conservative Justices on the Court was] the flip side of the War in Court Era, when the court was severely criticized for its so-called liberal activism, which bred a new generation of conservatives,” Totenberg said.

Additionally, she described this movement to the right as influenced by who was in office, as well as President Obama’s propensity to “play it safe” by appointing moderate liberals to the Supreme Court. Totenberg also mentioned, in the past 10 years, the Supreme Court has struck down many more laws than it had in the past.

Totenberg then described some of the important Supreme Court cases for this year. In 2012 the Supreme Court will decide the constitutionality of certain provisions of Obama’s Affordable Care Act, as it was challenged by 26 states. Nevertheless, one of the provisions being challenged concerns a tax on individuals without health insurance and the Court cannot challenge a tax before it is implemented. Additionally, some say the Act’s provisions are too intertwined and the law cannot stand if certain provisions are struck down.

The Supreme Court will also review the Arizona immigration law, notably the provision stating Arizonian police can detain anyone if they cannot prove they are present legally in the United States. The Supreme Court will also assess whether the police need a warrant to put GPS tracking devices on cars. Finally, another important case this year will decide whether it is legal to have juveniles sentenced to life without parole in homicide cases.

At the end of her lecture Totenberg took part in a question and answer session, in which she answered questions about the GOP campaign and Citizens United, as well as SOPA and PIPA.