When President Gerald Ford nominated him in 1975, Justice John Paul Stevens occupied the ideological center of the Supreme Court. By the time he retired in 2010, he was the Court’s most liberal member. Over those thirty-five years, the Court changed far more than Stevens did. “What was once on the extreme right is now merely conservative,” wrote University of Chicago constitutional law professor Cass Sunstein. “What was once conservative is now centrist. What was centrist is now left wing. What was once on the left no longer exists.”
According to a study using Martin-Quinn scores, “the current court is the most conservative since at least the 1930s,” wrote Nate Silver of the New York Times recently. Of the ten most conservative members of the Court from 1937 to 2006, five are serving today: Clarence Thomas (1), Antonin Scalia (3), John Roberts (4), Samuel Alito (5) and Anthony Kennedy (10). The fact that Kennedy is now regarded as a moderate swing vote underscores how far to the right the Court has moved. (Only Justice Ruth Bader Ginsburg makes the most liberal list, at number 10.)
That rightward shift of the Roberts Court is especially pronounced today, in the wake of the ghastly 2010 Citizens United decision and the prospect that the Court may invalidate the Obama administration’s healthcare law. These consequential decisions could be a frightening preview of things to come. In the next year or two, the Court will consider a number of blockbuster cases. In late April the justices will hear arguments on Arizona’s draconian “papers please” immigration law. The fall term, which begins in October, includes a challenge to affirmative action at the University of Texas.
In the not-so-distant future the Court will likely decide the merits of: California’s Proposition 8, which banned gay marriage, and/or the Defense of Marriage Act, which prohibits states from enforcing gay marriage laws outside their borders and denies government benefits to gay couples; Section 5 of the 1965 Voting Rights Act, which forces states and localities covered by the act to pre-clear voting law changes with the federal government to make sure they do not discriminate against minority voters; Montana’s ban on corporate campaign contributions and its challenge to Citizens United; the indefinite detention of enemy combatants at prisons like Guantánamo; the ability of foreign nationals to sue corporations and their employees in the United States for human rights abuses abroad; and possibly even Roe v. Wade, given the slew of anti-abortion restrictions passed by Republicans since the 2010 elections. “It’s the most startlingly jampacked period in the past century,” says Tom Goldstein, a veteran Supreme Court litigator and publisher of SCOTUSblog. “It’s hard to imagine a more perfect storm of cases that will be granted or argued right before the presidential election that are so freighted with politics.”
Based on recent history, there’s a good chance the Court’s conservative majority will prevail in most of these cases. During the Roberts Court, conservatives have been in the majority in 71 percent of divided cases, the highest percentage since the beginning of the Warren Court in 1953, according to the Times. In the next year or two, the Court could undermine key rights for minorities, immigrants, women, the LGBT community, historically disenfranchised voters, detainees and human rights activists.