Thursday, July 26


By Cass Sunstein

According to conventional wisdom, the Supreme Court is equally divided between a conservative wing and a liberal one, with Justice Anthony Kennedy acting as the swing voter. But there is something extremely strange about this view of the current situation. By the standards of the recent past, the liberal wing isn't liberal at all.

According to conventional wisdom, the Court has long been evenly balanced between left and right, and it has finally shifted a bit to the right under Chief Justice John Roberts. But there is something strange about this view as well. The Court shifted quite dramatically to the right between 1972 and 2000, indeed between 1980 and 2000, and yet people continued to speak of an alleged "balance" even as the dramatic shift was underway.

To see how much has happened, and how little we have understood it, we need to try a little science fiction. Imagine, if you will, a Supreme Court that, in the next quarter-century, has been shifted radically to the left.

Imagine that by 2030, Justices Antonin Scalia and Clarence Thomas have both resigned, and their successors are much more liberal than anyone serving now on the Court--far to the left of the Court's supposed liberal wing. The new justices believe that the death penalty is always unconstitutional. They argue that the Constitution creates a right to education and very possibly to welfare and housing as well. They think that affirmative action programs are fine, even if they operate as rigid quota systems. They are not merely committed to a right to choose abortion; they say that the Constitution requires government to fund abortions for poor women, even when those abortions are not medically necessary.

Imagine too that Kennedy has been succeeded by someone who is far to his left--by someone who essentially agrees with the two very liberal justices described above.

Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer continue to serve on this imaginary court, and Justice John Paul Stevens has been replaced with someone who thinks very much as he did. But all four justices, taken in 2007 to be the court's "liberal wing," are characterized in 2030 as moderates or even as conservatives.

Samuel Alito has disappointed some and pleased others, by proving to be somewhere between a conservative and a centrist. Chief Justice John Roberts remains on the court, but he is now its only reliably conservative member. Joined sometimes but not always by Alito, he is popularly described as the Lone Ranger.

Does this Supreme Court of 2030 seem utterly fantastic and unimaginable--a conservative's worst nightmare, a liberal's wildest dream? If so, think again. The court just described is no fantasy. In essence, it is the Supreme Court of 1980. That court consisted of Chief Justice Warren Burger and Justices Thurgood Marshall, William Brennan, Harry Blackmun, Lewis Powell, Byron White, Stevens, Potter Stewart, and William Rehnquist (once known as the Lone Ranger).

Astonishing but true: The court of 1980, so far to the left of the court of 2007, was itself described as a conservative court. After all, it included five Republican appointees (Powell, Burger, Rehnquist, Stevens and Stewart) who generally rejected the liberal rulings of their predecessors on the Warren Court.

Justices Souter and Stevens, both Republican appointees, are often described as "liberals" on the current Court — even though their general views are close to those of two highly respected centrists on the Burger Court, Justices Powell and, well, Stevens. Justice Kennedy is standardly described as the "moderate" on the Court--even though his views on key issues are far more conservative than those of Powell, Stewart, and White, the distinguished moderates on the Burger Court.

In short, the conservative refashioning of the Court has radically changed the terms of legal and political discourse. On the Supreme Court, what was once centrist is now left-wing. What was once conservative is now centrist. What was once on the extreme right--so extreme that it was not represented on the Court at all--is now merely conservative (Scalia and Thomas). What was once on the left no longer exists (Brennan and Marshall, often joined by Blackmun).

By drawing attention to these changes, I do not mean to suggest agreement with the liberals of the Court's past. In my view, the Court does best if it proceeds incrementally and with respect for the elected branches of government. But public discussion has been badly distorted by a failure to see exactly how much has happened in the last decades. Indeed, this particular revolution has been so unusual, and so stunningly successful, precisely because so few people have even noticed it.