The Roberts Court is Not 'Increasingly Conservative'


The Roberts Court is Not 'Increasingly Conservative'

Oct 9, 2014 3 min read

Former Legal Fellow and Appellate Advocacy Program Manager

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.

Washington Post Supreme Court correspondent Robert Barnes claims that the Supreme Court has become more conservative during John Roberts’ nine-year tenure as Chief Justice. Such a characterization shows a misunderstanding of the role of courts. Rather than label the Roberts Court as “conservative” or “liberal,” it would be more accurate to describe the Court as “textualist.” Certainly, some of the court’s decisions (such as NFIB v. Sebelius) are outliers. But in many of its rulings, the Roberts Court has emphasized correctly construing the actual words of the Constitution and statutes, rather than basing its opinions on individual justices’ ideas of social policy.

Sometimes careful statutory constructions yield “conservative” results, but sometimes they produce “liberal” results. In short, the text matters to the Roberts Court. Looking to the text first has even spread to so-called “liberal” justices—consider Justice John Paul Stevens’ dissent in District of Columbia v. Heller (2008) and Justice Stephen Breyer’s majority opinion in NLRB v. Noel Canning (2014).

One might expect a “conservative” court to rule in favor of law enforcement more often than not. But the Roberts Court’s Fourth and Sixth Amendment jurisprudence has been far from conservative. The Sixth Amendment’s Confrontation Clause requires that a criminal defendant has the right “to be confronted with the witnesses against him.” In a series of cases including Melendez-Diaz v. Massachusetts (2009) and Bullcoming v. New Mexico (2011), the Roberts Court returned to the actual text of the Confrontation Clause instead of following the longstanding tradition embodied in Ohio v. Roberts (1980) of giving law enforcement more leeway to introduce at trial statements made out-of-court by individuals who were not subject to cross-examination.

The Fourth Amendment guarantees a right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Returning to a property-focused approach to the Fourth Amendment, in United States v. Jones (2012) the Court held that the police violated the Fourth Amendment by attaching a GPS device to a suspected drug dealer’s car and monitoring his movements. Just last term in Riley v. California and United States v. Wurie, the Roberts Court rejected law enforcement’s claim that it could search the contents of an arrestee’s cellphone without a warrant.

The Roberts Court has also been increasingly skeptical of overbroad laws that may chill lawful speech. The First Amendment states that “Congress shall make no law…abridging the freedom of speech.” The Court has commented that this amendment “reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

In accordance with this judgment, the Court has struck down a federal law criminalizing the making of animal “crush” videos in United States v. Stevens (2010), invalidated a state law that prohibited selling or renting violent video games to minors in Brown v. Entertainment Merchants Association (2011), and overturned a federal law criminalizing false claims of having received military decorations or medals in United States v. Alvarez (2012).  This term it will consider whether an amateur rapper’s conviction for posting threatening statements (or rap lyrics, depending how you view them) on Facebook violated his free speech in Elonis v. United States.

Another common refrain about the “conservative” Roberts Court is that it is “pro-business.” But the Roberts Court has consistently issued rulings that weaken patent rights, which are property interests—created pursuant to federal law—of great value to companies. Decisions that are strongly pro-patent might superficially be deemed “conservative.” Yet, the Roberts Court has been called “Public Enemy Number One for Patent Holders.” Section 101 of the Patent Act provides, “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter…may obtain a patent therefor.” Thus, “laws of nature, natural phenomena, and abstract ideas” may not be patented. Applying Section 101 and its “laws of nature” corollary, the Court found inventions unpatentable for lack of “novelty” in Mayo v. Prometheus (2012) and made it harder to uphold biologically-based patents in AMP v. Myriad Genetics (2013).

A Court that frequently sides with criminal defendants over law enforcement, strikes down laws restricting free speech, and rules against business interests in patent cases is hardly a bastion of conservatism. Rather than being “conservative” or “liberal,” a defining characteristic of the Roberts Court has been the importance placed on the text of the Constitution and statutes it is called upon to interpret. Textualism does not guarantee a “conservative” or “liberal” outcome, but it helps to minimize a judge’s biases. Indeed, a judge who looks beyond the text of the Constitution “looks inside himself and nowhere else,” as Judge Robert Bork remarked.

 - Elizabeth Slattery is a legal fellow in The Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies.

Originally appeared in CNS News