Mainstream media and commentators often claim we have a “6—3 majority conservative Supreme Court.”
No, we don’t.
And to make the point, I thought I might explain what a truly conservative Supreme Court would be like: I mean a conservative court in the sense that we used to have a liberal one.
Early in the 1787 Constitutional Convention, advocates of states’ rights were complaining about the “nationalism” of delegates such as James Madison and James Wilson. So arch-nationalist Alexander Hamilton stood up to tell them the kind of Constitution he wanted. In an oration lasting all day, Hamilton outlined his proposals for a president for life with an absolute veto, a senate for life, states subordinated to an all-powerful central government, etc., etc.
Once Hamilton sat down, some of the complainers probably decided that moderate nationalists like Madison and Wilson weren’t so bad after all.
I’m going to perform Hamilton’s trick here. I’m going to describe the kind of decisions a truly conservative-activist Supreme Court would make. Then maybe some of our liberal friends will be grateful that we really don’t have such a court.
Background
No one in today’s six-justice majority is an outcome-driven conservative in the way the three left-leaning justices are outcome-driven liberals. The six follow a variety of judicial philosophies, ranging from the “minimalism” of Chief Justice John Roberts to the “originalism” of Justice Clarence Thomas.
Sometimes those justices produce results conservatives like. Sometimes they produce results liberals like. That’s not a liberal majority; but it’s not a conservative one, either.
For perhaps a century, the Supreme Court has included liberal activists among its members. During much of the 20th century, the liberal activists comprised an absolute majority of the justices. But there has not been a single conservative-activist on the bench since Justice McReynolds retired in 1941.
If there were a conservative-activist majority, what would it do? We can extrapolate this from the following:
- What liberal-activists did when they held a majority;
- what they recommended when they were in the minority; and
- the direction that strongly libertarian and deeply conservative scholars recommend for the court.
Accordingly, let’s imagine it’s a few years down the road, and six of the nine justices are conservative activists. In other words, let’s imagine what a truly conservative Supreme Court would do.
By Rob Natelson
