When Kenneth Starr spoke to Georgetown law school’s Federalist Society in February, he repeated a standard conservative critique of the Supreme Court under Chief Justice Earl Warren. The Warren Court, Starr said, was “animated by a vision of a progressive society and of the Court’s using its power to further that progress.”
As evidence, Starr cited a second-hand quote attributed to Justice Tom Clark, who played the pivotal role in the decision in Mapp v. Ohio (1960) that launched the Warren Court’s criminal procedure revolution. It was Clark, a former U.S. attorney general, who persuaded four other justices to turn a state obscenity case into a decision requiring states to follow the exclusionary rule and bar the use of any evidence illegally seized by police.
Years later, Starr recounted, Clark was quoted as saying: “We really knew that we had to do something to clean up the nation’s police departments.” Now, decades later, the nation’s police departments have in fact been cleaned up. And no less an authority than the late Chief Justice William H. Rehnquist described the capstone of the Warren Court’s criminal procedure rulings the police interrogation guidelines established in Miranda v. Arizona (1966) as “part of our national culture.”
Starr, the former judge-solicitor general-Whitewater prosecutor now turned lawyer and law professor, described the current Court, under Chief Justice John G. Roberts Jr., as “a very different kind of court.” Without elaborating, Starr seemed to be suggesting that unlike Warren’s Roberts’ Court does not bring an overarching "vision" to its judicial decision making. Roberts himself gave the Senate Judiciary Committee a preconfirmation assurance that he had no agenda and wanted only to be an “umpire” while others determined the rules of the game.
Even at the time, Roberts’ portrayal of judicial decision-making as ideologically neutral could be recognized as claptrap. Now, four terms later, it is clear that Roberts, who came of age in the Reagan administration and to the bench under Bush 43, brings to the bench an overarching, conservative vision of legal policy. And with four votes from the other conservative justices, Roberts has been able to put some of that vision into effect in some cases, legal precedent to the contrary notwithstanding.
The most controversial examples of Roberts’ vision came in 2007 as he ended his second term and the first full term with his fellow Bush appointee, Samuel A. Alito Jr. Replacing Justice Sandra Day O’Connor, Alito created a more reliable conservative majority that flexed its muscles that year by upholding the federal law banning so-called partial birth abortions, limiting school districts’ racial diversity policies and gutting the campaign finance law against corporate-funded, campaign-time “issue advertising.
The conservatives reached each of those decisions by sliding over or around the Court’s prior rulings. The Court that year also explicitly overruled a 90-year-old antitrust precedent. And it dubiously extended a prior ruling to limit taxpayer suits against use of federal funds to support overtly religious programs.
The Court has continued to lay waste to precedent. In 2008, the conservatives recognized an individual right to possess firearms under the Second Amendment in the teeth of a 70-year-old precedent to the contrary. Just this month, the Court on April 1 effectively overturned a 35-year-old precedent in order to enforce a collective bargaining agreement requiring workers to take discrimination complaints to arbitration instead of into federal court. Earlier this year, the Court used a footnote to scrap a federal appeals court antitrust ruling written in 1945 by the late Judge Learned Hand that had passed into the law books as settled law.
Under Roberts, the conservatives also appear to be on a stealth campaign of sorts to gut, if not abolish, the exclusionary rule. The first sign came in 2006 with the 5-4 decision in Hudson v. Michigan permitting the use of evidence found in the suspect’s home even though police had not complied with the “knock and announce” rule before entering. For the majority, Justice Antonin Scalia openly questioned the need for the exclusionary rule in an era of improved police professionalism. In January, Roberts similarly questioned the rationale for the exclusionary rule in another 5-4 decision, Herring v. United States, which allowed the use of evidence except in instances of reckless or systemic police misconduct.
As in other areas, Justice Anthony M. Kennedy is a sometimes wayward conservative. He wrote a concurring opinion in Hudson to stress that the exclusionary rule remains alive. Earlier this month, he cast a decisive vote with the liberal bloc in Corley v. United States to preserve the Court’s 66-year-old ruling to bar confessions in federal court unless a suspect is taken before a magistrate within six hours of arrest. For the dissenters, Alito said the exclusionary rule served no purpose in such cases.
These and other decisions reveal the vision that animates the Roberts Court whether or not Kennedy is on board. The agenda includes less protection for women’s reproductive rights, less leeway for schools to promote racial diversity, less room for legislators to regulate campaign spending, less access to courts for workers and consumers, and lessened constraints on the police to safeguard Fourth Amendment rights. It is an ambitious agenda. At age 54, Roberts has ample time to try to put the pieces into effect.