What Conservative Constitutional Revolution? Moderating Five Degrees of Judicial Conservatism after Six Years of the Roberts Court

Abstract

This article separates the facts from the hyperbole regarding the constitutional decisionmaking of the Roberts Court. Despite the claims that the Court is dismantling precedents and is engaged in conservative activism, I demonstrate through an empirical and doctrinal analysis that the Roberts Court has a better record of adhering to constitutional precedent than any other Court in the last fifty years. It has been selective in reviewing the constitutionality of state and local laws, invalidating fewer laws per term than any other Court since the Korean War. Most of its decisions comport with the precepts of minimalism - avoiding constitutional issues when possible, respecting the holdings of prior decisions, resolving controversies in small steps, relying on incremental rules, and providing an opportunity for a dialogue on constitutional meaning. Although the Court has not adhered to this approach in the campaign expenditure and criminal procedure contexts, the resulting changes in constitutional doctrine are not even consistently conservative, much less revolutionary.

This is because the "conservative" members of the Court have quite distinct judicial philosophies. I identify five methodological planes or axes along which a judge's jurisprudence could be described as conservative, including adopting a historically frozen interpretive methodology, employing an analytical process for formulating predictive rules, relying on an incremental approach to constitutional decisionmaking, perfecting the Constitution in accordance with a preferred conservative ideological vision, and deferring passively to the other branches of government on constitutional meaning. I evaluate the preferences of Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito along these five planes, demonstrating that each has his own preferences when the various strands of judicial conservatism conflict. Such meaningful distinctions in the jurisprudential views of the Republican-appointed members of the Court bar any current possibility of a conservative constitutional revolution.

Keywords: Roberts Court, minimalism, originalism, judicial restraint, conservative jurisprudence

JEL Classification: KOO