The Supreme Court is More Conservative, But Hey, So is the Country

In a good, though not groundbreaking, piece in today's Times, Adam Liptak details how changes in the Court's composition, most notably the retirement of O'Connor and the appointment of Alito, have shifted the Court to the right wing of the political spectrum. Indeed, as anyone who has been following the Roberts Court can tell you, the Court has taken a right turn on most of its issues. The shift to the right is fairly modest, since the Court was no bastion of progressivism even before that.

Still, what's slightly more interesting (though again, not surprising), is that this conservatism closely tracks public opinion. 30% of Americans think the Court is too liberal (TOO LIBERAL!!!), and about 50% find themselves roughly along the lines the Court has delineated. One can make the argument that the Court shapes public opinion and is perceived as an authority, and thus it is not surprising that its decisions are reflected in public opninion. But this is unlikely. It is much more likely that the Court reflects preexisting political preferences among the citizenry. This is to be expected, given, among other things, the appointment process which seeks broad bipartisan support. This is also a further validation of the attitudinalist line of research in law & political science.

This is all old hat, of course. But here are two things to think about. First, do we want the Court to be a majoritarian institution? (Barry Friedman has for years claimed that there is no counter-majoritarian difficulty because the Court reflects the majority). On the one hand, the confirmation process makes this inevitable. On the other hand, as many people have shown, when the Court acts as a counter-majoritarian institution, it is unlikely to succeed in enacting real social change, unless it is suppressing outliers. Second, why is this country so damn conservative? This is tongue in cheek, but I do wonder. As someone told me after the lawsuits against the healthcare bill started flooding the courts, a bill which would give tens of millions of Americans health insurance, the US is the only country where ideology consistently trumps self-interest.