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>> 93 5 The Supreme Court and Neoconservatism In the 2008 election, the American people largely banished neoconservatives from the executive and legislative branches of the national government. Naturally, with periodic congressional and presidential elections, the ratio of conservative Republicans and liberal Democrats in positions of official power will vary depending on the most recent electoral results. Regardless, neocons will continue to wield considerable power from entrenched positions within the national government: namely, as judges on the federal courts and, most particularly, as Supreme Court justices. Although Alexander Hamilton disparaged the judiciary as the “least dangerous” branch because it controlled neither sword nor purse, Supreme Court justices, as the final interpreters of the Constitution, brandish authority over our entire governmental system.1 To be sure, neoconservatives insist that judicial decision making, even at the Supreme Court level, can be apolitical. They argue that if only the 94 > 95 the 1937 turn). On the one side is the conservative outlook—which conservatives sometimes label as neutral or apolitical—and on the other side is the liberal or progressive outlook—which conservatives sometimes label as corrupt and activist. Regardless of the labels, though, Supreme Court justices can seemingly follow either the conservative or liberal outlook: There is a (political) choice. And after all, the apparent importance of politics to constitutional adjudication is the reason that presidents and members of Congress devote so much energy to the political vetting of Supreme Court appointees. Does anyone truly doubt whether Thurgood Marshall’s and Antonin Scalia’s different political orientations would produce different judicial results—even if both justices claimed to apply the original meaning of the Constitution? Meese’s 1988 Justice Department Report, The Constitution in the Year 2000, though claiming that originalism is apolitical, emphasized that the selection of Supreme Court justices greatly affects “the public policy realm.” In fact, given how pluralist democracy has evolved, the political stakes in Supreme Court cases can appear toweringly high. Consider a case challenging an affirmative action program in higher education, or a case involving a woman’s interest in choosing whether to have an abortion . In such cases, the Court often appears to choose between irreconcilable political positions, though a judicial decision is not necessarily the last word—exactly because the legal issues are also political issues. When the Court handed down Roe v. Wade in 1973, concluding that a constitutional right of privacy protected a woman’s interest in reproductive choice, the judicial victory for the women’s movement provoked in response an energetic anti-abortion (or pro-life) political movement.4 What, then, are the political preferences of the Supreme Court justices? Few observers deny that, over all, the early John Roberts and William Rehnquist Courts were conservative; Republican presidents appointed seven of the nine justices sitting at the end of the October 2008 term (in reverse chronological order of appointment: Samuel Alito, John Roberts, Clarence Thomas, David Souter, Anthony Kennedy, Antonin Scalia, and John Paul Stevens). In fact, the four appointees preceding Stevens (William Rehnquist, Lewis Powell, Harry Blackmun, and Warren Burger) were all Republicans, as was Sandra Day O’Connor, appointed after Stevens . The political scientists Jeffrey Segal and Albert Cover have empirically scored Supreme Court nominees’ perceived political ideologies at the time of nomination, with .000 being most conservative (e.g., Scalia) and 96 > 97 product in one case, and in another when the Court afforded insurance companies a good-faith defense for a mistaken reading of a regulatory statute. The Court has continued to protect corporate defendants against large punitive damage awards. . . . In a sharp departure from a decision just seven years earlier, the Court upheld a law criminalizing abortion by means of intact dilation and evacuation, despite the fact that the statute made no exception for the need to protect the health of the mother. Important decisions on the Fourth Amendment have run against criminal defendants. The Court held voluntarily adopted school integration efforts in Seattle, Washington, and Louisville, Kentucky, to be unconstitutional, over a passionate dissent by the moderate Justices. In a failure to follow what was arguably a controlling precedent, the Court held that taxpayers had no standing to bring an Establishment Clause challenge to a federal agency’s use of federal money to fund conferences to promote the President ’s faith-based initiatives.6 Not only is the Roberts Court unequivocally conservative, it can reasonably be categorized as predominantly neoconservative. Three justices— Scalia, Thomas, and Alito—are members of the Federalist Society, while Roberts has been...

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