State of the Supreme Court:

by Clint Bolick and Scott G. Bullock

Introduction and Summary

Few issues are as topical and contentious-or as important-as the proper role of the courts in American life and public policy. Most Americans would agree that the rule of law is essential to our free society. But the consensus breaks down after that. Conservatives condemn the federal courts for their propensity to second-guess democratic decisionmaking and to create rights and responsibilities out of thin air. Liberals attack the courts for their failure adequately to safeguard essential civil liberties.

Both sides have it partly right-and partly wrong. Neither conservatives nor liberals have a clear and consistent framework for appropriate judicial action. In the name of judicial restraint, many conservatives would strip federal courts of their vital role in protecting individual liberties. And in the name of civil liberties, many liberals would invest courts with coercive powers they do not legitimately possess.

Of the three branches of government created by the Constitution, the judiciary was designed to be the most libertarian. The framers intended the courts to safeguard against violations of individual liberty and to restrain the other branches of government from exceeding their assigned powers. This report assesses the current Supreme Court's record in fulfilling this constitutional role.

The timing is right for such an analysis. The composition of the current Court has been intact for two full terms and most of a third, allowing us to consider the Court's record on a broad array of issues decided during that time. Moreover, the courts are approaching a potentially crucial turning point: President Bill Clinton has nominated approximately one-quarter of all federal judges (including, of course, two of the nine present Supreme Court justices), and by the completion of his second term will have appointed approximately half of the federal judiciary. If he has any additional Supreme Court appointments, he could tip the precarious balance on that court. In any event, Clinton's judicial appointments will exert enormous influence well into the 21st century. We hope that an assessment of the Supreme Court in the context of its vital role as a guardian of individual liberty will yield insights to guide participants in the difficult task of appointing and confirming judges.

We have examined the Supreme Court opinions over the past three terms (1993-95)1 and have identified 26 cases that presented the Supreme Court with issues of fundamental individual liberties and the proper limits of government power. Our main findings on the state of the Supreme Court are as follows:

1. The current Supreme Court in general has a fairly good record in protecting individuals against violations of their basic liberties and curbing excesses of government power. In the 26 cases over the past three terms presenting clear conflicts between individual liberty and government power, the Court supported individual liberties in 19 cases (73 percent).

2. The Court is precariously balanced, with a bare majority siding with individual liberties in specific cases. Of the 26 cases we considered, 15 were decided by a 5-4 vote (including 11 of the 19 pro-liberty decisions), so that the appointment of a single justice could alter the Court's balance that today tends to favor liberty.

3. Few of the justices applied a consistent presumption in favor of liberty. Of the current Court members, Justices Anthony Kennedy and Sandra Day O'Connor-typically considered the Court's "centrists"-along with Justice Clarence Thomas, voted most consistently to uphold individual rights and to strike down excessive government power, each doing so in more than 70 percent of the cases.

4. The justices least likely to support civil and economic liberties were Justices Stephen Breyer and Ruth Bader Ginsburg, the two Clinton appointees, who voted to uphold government power in more than 60 percent of the cases.

We begin our analysis by summarizing the role the framers assigned to the courts in our constitutional system. We then apply that framework to the current Supreme Court and individual justices.


The Role of Courts in the Constitutional System

For better or worse, the judiciary is the last bulwark for individual liberty in our constitutional system. Alone among the branches of government, courts are not answerable directly to democratic processes, and thereby effectively can protect individual rights against majoritarian abuses and check the excesses of the legislative and executive branches. That was exactly the framers' intent.

The Constitution did not, however, confer upon the courts legislative or executive powers, such as running schools or prison systems or raising taxes. That is precisely what the framers didn't want, although too often that has happened.2 But they did intend a vigorous judicial role in protecting individual rights and limiting the other branches of government to their constitutionally delegated powers. There are two types of judicial activism that go beyond the intended role of the judiciary: the well-recognized type in which courts create new rights or responsibilities unknown to the Constitution3; and the even more dangerous types where rights that do exist in the Constitution are read out of it,4 and where government is allowed to exceed the limits of its expressly delegated powers.5

The courts are an important part of the delicate balance of powers within a constitutional system that delegates to the government limited and carefully defined powers and reserves to the people all rights and powers not expressly delegated to the government.6 In his argument for a bill of rights, James Madison envisioned that the "individual tribunals of justice" would serve as "the guardians of those rights," providing an "impenetrable barrier against every assumption of power in the legislative or executive" branches inconsistent with those rights.7 The most systematic explanation of the proper role of the judiciary is The Federalist No. 78, in which Alexander Hamilton describes a judiciary that defers to democratic decisionmaking but places constraints on excesses of government power. The courts' essential role, Hamilton observed, is "to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."8

Hamilton explains at greater length the vital role of the courts within the constitutional framework:

No legislative act . . . contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . . Nor does this conclusion by any means suppose a superiority of the judicial to the legislative authority. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to the will of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former, . . . by the fundamental laws, rather than by those which are not fundamental.9

In brief, the framers intended the courts to play an active role in confining government to its expressly delegated powers and protecting individual liberties. We assess the Court's recent record within this framework.



The enterprise of assessing the record of the Supreme Court and individual justices is fraught with difficulty. Any compilation and analysis necessarily reflects the authors' judgment, which enters the picture upon deciding which cases to include in the analysis.10 Even the most steadfast advocates of civil liberties differ over issues such as abortion and the rights of criminal defendants.11 Accordingly, we have included only those cases we believe involve clear cases of violations of individual liberty or excesses of government power.

The task is complicated further by the nature of judicial decisionmaking. Cases rarely are decided purely on the basis of principles, but in light of the facts of particular cases. Opinions often are complex and nuanced, providing greater or lesser strength for the underlying legal proposition.12 Sometimes justices will follow past precedents even if they think the cases were wrongly decided. In such situations, a justice's vote may not provide a complete barometer of his or her views on the substantive legal issue. Rather than attempting to assign different weights to the Court's decisions or the opinions of individual justices, we have set forth the cases and the individual votes below, and will let them speak for themselves.

Furthermore, the justices' votes are in part a function of the cases presented and selected for review. In a term in which multiple property rights or racial classification cases are considered, we would expect to see conservative justices with higher individual liberty ratings; conversely, the same would be true for liberals in a term with a high number of free speech or privacy cases. As a result, the outcomes in particular cases or court terms should be cautiously interpreted.

These important caveats aside, our view is that these factors generally balance out over time to produce a fairly accurate picture of the Court's and individual justices' records in protecting the rule of law necessary for a free society. We have selected the cases over the past three Court terms that we believe provide the clearest insights into the justices' views of the proper scope of governmental power in the areas of civil liberties (CL) and economic liberties (EL).13 We present our findings below.14


Significant Cases, 1993-96




Bennis v. State of Michigan, 116 S.Ct. 994 (Anti-CL). The Court, 5-4, upheld forfeiture of innocent owner's automobile. Forfeiture was attacked on grounds that it violated due process and takings clauses.


Majority (Anti-CL): Rehnquist, O'Connor, Scalia, Thomas, and Ginsburg.

Dissent (Pro-CL): Stevens, Kennedy, Souter, and Breyer.


The Court missed a golden opportunity to place firm, historically-based constitutional limits on the civil forfeiture power. In upholding the right of governments to confiscate the property even of innocent owners, the Court seriously undermined constitutional protection for private property rights. Justice Kennedy's dissent is an especially noteworthy challenge to the majority's blithe acceptance of forfeiture.

44 Liquormart v. State of Rhode Island, 116 S.Ct. 1495 (Pro-EL). Rhode Island's prohibition on advertising the price of alcoholic beverages was struck down, 9-0, in this commercial speech case.

Unanimous decision, but justices divided along favoring either strong or weak protection for commercial speech.


Strong commercial speech protection (Pro-EL): Stevens, Scalia, Kennedy, Thomas, and Ginsburg.

Weak commercial speech protection (Anti-EL): Rehnquist, O'Connor, Souter, and Breyer.

In perhaps its best commercial speech ruling yet, the Court recognized increased protection for commercial speech, casting significant doubt on pending proposals to regulate cigarette and alcohol advertising and other forms of commercial information. Several justices seem willing at some point in the future to eliminate the false distinction between "commercial" and "non-commercial" speech.

Bush v. Vera, 116 S.Ct. 1941 (Pro-CL). The Court declared the Texas race-conscious voting district unconstitutional, 5-4.


Majority (Pro-CL): O'Connor, Rehnquist, Scalia, Kennedy, and Thomas.

Dissent (Anti-CL): Stevens, Souter, Ginsburg, and Breyer.

Shaw v. Hunt, 116 S.Ct. 1894 (Pro-CL). The Court held, 5-4, North Carolina's racially gerrymandered voting district unconstitutional.

Majority (Pro-CL): Rehnquist, O'Connor, Scalia, Kennedy, and Thomas.

Dissent (Anti-CL): Stevens, Souter, Ginsburg, and Breyer.


In both Vera and Shaw, the Court upheld the constitutional guarantee of equal protection of the laws by overturning voting districts drawn along racial lines. The Court not only enforced constitutional rights, but also virtually ended what was fast becoming the Balkanization of the American electorate into racial and ethnic camps.


United States v. Virginia, 116 S.Ct. 2264 (Pro-CL). The exclusion of women by the state-run Virginia Military Institute was declared unconstitutional, 7-1, under the equal protection clause.


Majority (Pro-CL): Ginsburg, Rehnquist, Stevens, O'Connor, Kennedy, Souter, and Breyer.

Dissent (Anti-CL): Scalia.


Justice Thomas did not participate in this case.

The Court furthered its commitment to guaranteeing equal treatment by the government. While certainly private schools and colleges must be allowed to determine their admission policies, government-supported schools must abide by constitutional guarantees, including the right of all to equal protection of the laws.

Colorado Republican Federal Campaign Committee v. Federal Election Commission, 116 S.Ct. 2309 (Pro-CL). FEC brought an action against the state Republican party under the Federal Election Campaign Act for spending money on political advertisements that did not support a particular candidate. The Court, 7-2, held that the First Amendment prohibits application of FECA's party expenditure provision to expenditure that a political party has made independently, without coordination with any candidate.

Majority (Pro-CL): Breyer, Rehnquist, O'Connor, Scalia, Kennedy, Souter, and Thomas.

Dissent (Anti-CL): Stevens and Ginsburg.

It is important to defend First Amendment rights in the context of "election reforms." Spending on candidates and causes of one's choice is protected by the First Amendment, and most proposals for campaign finance reform flagrantly violate free speech rights. The only truly constitutional election finance law would allow for unlimited spending on candidates and causes, but with full disclosure of the sources of such funds. This would allow candidates to make spending and funding sources a campaign issue and leave it for the voters to decide its significance.

BMW of North America v. Gore, 116 S.Ct. 1589 (Pro-EL). Court held, 5-4, that four million dollar punitive damage award for manufacturer's failure to disclose that automobile had been repainted was "grossly excessive" in violation of the due process clause of the Fourteenth Amendment.


Majority (Pro-EL): Stevens, O'Connor, Kennedy, Souter, and Breyer.

Dissent (Anti-EL): Rehnquist, Scalia, Thomas, and Ginsburg.

Although there are dangers to constitutionalizing state tort law (as pointed out by the dissenters in this case), there must be some limit on staggering civil damage awards that result not from culpability, but out of a desire to tap into deep pockets. The majority in this case struck a legitimate balance between constitutional rights and the discretion of juries by establishing some outer limit on civil damage awards.


U.S. v. Usery, 116 S.Ct. 2135 (Anti-CL). The Court held, 8-1, that civil forfeitures were not "punishment" for purposes of the double jeopardy clause.


Majority (Anti-CL): Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer.

Dissent (Pro-CL): Stevens.


The Court should have recognized in this case that civil forfeiture has strayed so far from its very limited common law origins that most modern applications of the power are in fact criminal sanctions. Therefore, constitutional protections, including the right to a jury trial and the right to be free from double jeopardy, should apply to most "civil" forfeiture actions. Again, the Court missed an important opportunity to rein in abusive forfeitures.


Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114 (Pro-EL). Court held, 5-4, that Congress lacked authority under the Indian Commerce Clause to eliminate state's Eleventh Amendment immunity.


Majority (Pro-EL): Rehnquist, O'Connor, Scalia, Kennedy, and Thomas.

Dissent (Anti-EL): Stevens, Souter, Ginsburg, and Breyer.

Although not as important as the Court's opinion in Lopez, this case also takes seriously the principle that there are limits to Congressional authority under the Constitution.




U.S. v. Lopez, 115 S.Ct. 1624 (Pro-EL). Court held, 5-4, that federal Gun-Free School Zones Act exceeds Congress' power under the Commerce Clause.


Majority (Pro-EL): Rehnquist, O'Connor, Scalia, Kennedy, and Thomas.

Dissent (Anti-EL): Stevens, Souter, Ginsburg, and Breyer.


For the first time in almost 60 years, the Court declared that Congressional authority is limited by the Commerce Clause. Although the decision was somewhat narrow, the very fact that the Court used the Commerce Clause as a limit on rather than an excuse for the expansion of federal power was a landmark constitutional moment. Justice Thomas's concurrence is one of the best Supreme Court opinions in the past 20 years, a stirring call for the restoration of constitutionally limited government.


Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (Pro-CL). Court, 5-4, struck down federal racial set-aside program after challenge by guardrail subcontractor.


Majority (Pro-CL): O'Connor, Rehnquist, Scalia, Kennedy, and Thomas.

Dissent (Anti-CL): Stevens, Souter, Ginsburg, and Breyer.

Continuing the trend in the past several terms, the Court expressed profound skepticism toward the use of racial classifications and preferences. The decision makes it very difficult for governments to engage in pernicious racial and gender quota schemes.

Rosenberger v. Rector & Visitors of Univ. of Va., 115 S.Ct. 2510 (Pro-CL). Court held, 5-4, that denial of university funding for religious newspaper was violation of free speech guarantee of First Amendment; funding did not violate Establishment Clause.


Majority (Pro-CL): Kennedy, Rehnquist, O'Connor, Scalia, and Thomas.

Dissent (Anti-CL): Stevens, Souter, Ginsburg, and Breyer.


The Court upheld both free speech rights and the vital doctrine of equal treatment for individuals with religious views

McIntyre v. Ohio Elections Commission, 115 S.Ct. 1511 (1995) (Pro-CL). Court, 7-2, struck down under the First Amendment state prohibition on the distribution of anonymous campaign literature.

Majority (Pro-CL): Stevens, O'Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer.

Dissent (Anti-CL): Rehnquist and Scalia.

Good First Amendment decision protecting the historic right to publish anonymously. Some of our greatest political documents, including the Federalist Papers and Cato's Letters, were published anonymously. The Court kept this venerable tradition alive.

U.S. Term Limits v. Thornton, 115 S.Ct. 1842 (Anti-CL) Court, 5-4, struck down state term limits on federal office holders on grounds that it violated the "qualifications" clause of the Constitution and because it handicapped a class of candidates from holding elective office. The law did not strictly limit terms, but only provided that incumbents' names, after certain number of years of serving, would not be placed on the ballot. The Court also rejected a 10th Amendment argument for upholding the law.


Majority (Anti-CL): Stevens, Kennedy, Souter, Ginsburg, and Breyer.

Dissent (Pro-CL): Rehnquist, O'Connor, Scalia, and Thomas.


The Court's decision unnecessarily tramples upon the sovereignty of the electorate to determine who should be placed on state ballots. Moreover, the dissenters' argument from history is persuasive. Voters throughout the nation seeking to regain control of their public servants lost in this case.

Missouri v. Jenkins, 115 S.Ct. 2038 (Pro-CL). Court, 5-4, holds that sweeping judicial order, including ordering across-the-board salary increases for teachers and staff, went beyond the scope of a federal court's power to implement a desegregation plan.

Majority (Pro-CL): Rehnquist, O'Connor, Scalia, Kennedy, and Thomas.

Dissent (Anti-CL): Stevens, Souter, Ginsburg, and Breyer.

The Court exercised judicial restraint, curbing the power of lower federal courts to act in a legislative capacity and to issue orders that exceed the scope of the constitutional violation. It also continued the trend toward allowing local authorities to determine educational policies.

Hurley v. Irish-American Gay Group of Boston, 115 S.Ct. 2338 (Pro-CL). Court unanimously held that state anti-discrimination law could not be applied to privately organized parade that wished to bar gay and lesbian organizations from marching.

Unanimous (Pro-CL) (by Souter).

This is a classic pro-First Amendment decision. It upheld the First Amendment right to be free from supporting messages one finds objectionable. It also strengthened the ability of private parties to associate with individuals of their choice-and the concomitant right to exclude those who do not share a particular group's viewpoint.

Florida Bar v. Went-For-It, 115 S.Ct. 2371 (Anti-EL). Court, 5-4, upheld Florida bar rules which prohibited attorneys from using direct mail to solicit personal injury or wrongful death clients within 30 days after an accident.

Majority (Anti-EL): O'Connor, Rehnquist, Scalia, Thomas, and Breyer.

Dissent (Pro-EL): Stevens, Kennedy, Souter, and Ginsburg.

To be a consistent champion of free speech, it is important to support even unsavory speech or individuals. While one does not want to lionize ambulance-chasing personal injury attorneys, the free speech rights of attorneys in this case were trampled, and the Court turned its back on protecting commercial speech.

Vernonia School Dist. 47J v. Acton, 115 S.Ct. 2386 (Anti-CL). Court, 6-3, held that school district policy of conducting random drug tests of student athletes as condition of being on the team does not violate the Fourth Amendment.

Majority (Anti-CL): Scalia, Rehnquist, Kennedy, Thomas, Breyer, and Ginsburg.

Dissent (Pro-CL): Stevens, O'Connor, and Souter.

A fundamental principle of the Fourth Amendment is that the government can not search persons or property without individualized suspicion of wrongdoing. Accordingly, courts should look very skeptically at any attempt by government to engage in blanket searches, whether in the field of administrative inspections or random drug testing. Justice O'Connor's dissent is a persuasive rebuttal of the purported justifications for random student drug tests.

Miller v. Johnson, 115 S.Ct. 2475 (Pro-CL). Court, 5-4 overturned bizarrely shaped voting districts in Georgia as violative of equal protection.

Majority (Pro-CL): Kennedy, Rehnquist, O'Connor, Scalia, and Thomas.

Dissent (Anti-CL): Stevens, Souter, Ginsburg, and Breyer.

The Court once again upheld equal protection rights in the context of voting districts.

Rubin v. Coors Brewing Co., 115 S.Ct. 1585 (Pro-EL). Unanimous Court struck down federal ban on beer labels displaying alcohol content.

Unanimous (Pro-EL) (by Thomas).

The Court continued its recent trend toward increasing constitutional protection for commercial speech. The fact that all justices declared unconstitutional a regulation on alcohol, an area where governments normally are granted wide regulatory authority, is particularly encouraging.




U.S. v. James Daniel Good Real Property, 114 S.Ct. 492 (Pro-CL). The Court held, 5-4, that the due process clause requires governments to give notice and an opportunity for a hearing before seizing "real" property (land, homes, etc.) for forfeiture.

Majority (Pro-CL): Kennedy, Blackmun, Stevens, Souter, and Ginsburg.

Dissent (Anti-CL): Rehnquist, O'Connor, Scalia, and Thomas.

This was one of the first cases where the Court began to place limits on the forfeiture power. The Court took a property rights perspective on forfeiture and recognized important procedural protections for property owners faced with forfeiture.

C&A Carbone, Inc. v. Town of Clarkston, 114 S.Ct. 1677 (Pro-EL). Town sued a recycling company to stop it from violating a local ordinance requiring the company to process all the town's waste at government facilities. Court held, 6-3 decision, that the ordinance impermissibly discriminated against interstate commerce.

Majority (Pro-EL): Kennedy, Stevens, O'Connor, Scalia, Thomas, and Ginsburg.

Dissent (Anti-EL): Rehnquist, Blackmun, and Souter.

This little-known but important case enforces constitutional limits against local governments that deny economic liberty. The odd alliance of Chief Justice Rehnquist with Justice Harry Blackmun in dissent demonstrates that both the left and the right can be equally dismissive of economic freedoms.

Madsen v. Women's Health Center, Inc, 114 S.Ct. 2516. (Anti-CL). Court upheld, 6-3, part of extremely restrictive "buffer" zone around abortion clinic established through judicial injunction.

Majority (Anti-CL): Rehnquist, Blackmun, Stevens, O'Connor, Souter, and Ginsburg.

Dissent (Pro-CL): Scalia, Kennedy, and Thomas.

Even though the Court struck down part of the injunction, the provisions upheld were equally unjustified. The case did not involve clinic blockades, trespassing, or physical assaults, but classic speech that you see at virtually every picket line in a labor dispute or other social protest. Although the Court generally is respectful of free speech rights, several of the justices' commitment to free speech ends where abortion rights begin.

Dolan v. City of Tigard, 114 S.Ct. 2309 (Pro-EL). Court, 5-4, vindicated property rights of an elderly widow by striking down city requirement that she give up a certain amount of her property for a public bike path in exchange for a building permit. The city's exaction violated the Fifth Amendment's Takings Clause.

Majority (Pro-EL): Rehnquist, O'Connor, Scalia, Kennedy, and Thomas.

Dissent (Anti-EL): Blackmun, Stevens, Souter, and Ginsburg.

Dolan is an important property rights precedent that makes it more difficult for governments to engage in extortion-like behavior when property rights are at stake. Also, reversing a nearly 60-year trend, the Court moved to elevate property rights to the level of other constitutional freedoms.

City of Ladue v. Gilleo, 114 S.Ct. 2038 (Pro-CL). Court unanimously struck down city ordinance that banned all residential signs except those falling into one of ten narrow exceptions (such as "For Sale" signs).

Unanimous opinion (Pro-CL) (by Stevens).

The city refused to allow a woman to display a sign in her window that stated "Peace in the Gulf." The case represents an instance of the Court pulling together to strike down an obviously unconstitutional attempt to suppress a controversial political message.

Turner Broadcasting System v. FCC, 114 S.Ct. 2445 (Anti-CL). Cable system operators brought constitutional challenge to federal law requiring cable companies to carry local broadcast stations on their systems. A sharply divided court held that the "must carry" provisions serve important governmental interests, but sent the case back down for fact-finding on whether local broadcasters were actually threatened by cable and for determination of whether a less-restrictive mechanism was available for achieving governmental objectives.

Majority (Anti-CL): Kennedy, Rehnquist, Blackmun, Stevens, and Souter.

Dissent (Pro-CL): O'Connor, Scalia, Thomas, and Ginsburg.

Court applied intermediate scrutiny to congressional imposition of "must carry" rules on cable television companies, thereby imperiling free speech protections for cable broadcasters. The essential question in this case was who will have control over who gets to speak on cable. The majority believed that Congress, through the Federal Communication Commission, could make that determination, while the dissenters believed, consistent with First Amendment, that it must be the cable operators.



The Court's Record on Civil & Economic Liberties

We find that over the past three terms, the current Court sided with individual liberties against excessive state power nearly three-quarters of the time. Of the 26 cases we examined, the Court favored civil and economic liberties or reined in excessive government power in 19 cases (73 percent). Though the cases were few in number, the Court's recent record in protecting economic liberties is particularly good, upholding economic liberties in seven out of eight cases (87.5 percent). It sided with civil liberties in 12 out of 18 cases (67 percent). But the Court is delicately balanced, splitting 5-4 in 15 out of the 26 cases (58 percent).


The Justices' Records on Civil & Economic Liberties16

Civil Liberties

With respect to civil liberties, Justices O'Connor, Kennedy, and Thomas were most likely to evidence skepticism about government power. The consistent willingness of the more liberal justices to uphold racial preferences-elevating group rights over individual rights-depressed their pro-civil liberties vote totals. But we were distressed to find that Justice Ginsburg, who brought to the Court a reputation as a civil libertarian, sided with the state even in some traditional civil liberties cases (such as drug testing and asset forfeiture).

Economic Liberties

Justice Anthony Kennedy was the most consistent champion of economic liberties with a perfect record in the cases we examined. He was followed by Justices O'Connor, Scalia, and Thomas, all of whom voted in favor of economic liberties in three-fourths of the cases. Most disappointing in this area was Justice Breyer, who came to the Court with a reputation for skepticism about government economic regulation-so much that pro-regulation activist Ralph Nader opposed his nomination.


Total Individual Liberties

Justices Kennedy and O'Connor often are considered the Court's "moderates." But their votes over the past three terms suggest fairly strong support for civil and economic liberties and skepticism toward government power. Together with Justice Thomas, they voted in favor of individual liberties in more than three-fourths of the cases. The justices least likely to constrain government power and protect individual liberties were Justices Ginsburg and Breyer, both nominated by President Clinton.



Our analysis yields a fairly healthy state of the Supreme Court in 1997 for civil and economic liberties. In most cases, the Court is fulfilling its vital constitutional role in safeguarding individual liberties and checking excessive government power.

But the prognosis is ominous. The pro-liberty vote in a majority of cases is built on a slender 5-4 margin. The shift of a single vote could alter the precarious balance on a Court that generally supports individual liberties. In future nominations, we urge all the players-the president, who nominates; the Senate, which advises and consents; and the people, who ultimately judge the wisdom of their actions-to carefully weigh the central role of the Supreme Court in protecting our precious freedoms.




1. Justice Stephen Breyer has served on the Court for two full terms. Accordingly, our evaluation of his votes does not cover as many cases as the other justices.

2. See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (converting statutory entitlement to welfare into a property right).

3. A classic example of judicial overreaching is Missouri v. Jenkins, 495 U.S. 33 (1990), where the U.S. Supreme Court sustained court-ordered tax increases to fund gold-plated facilities under a desegregation decree. The Court applied limits to judicial activism in the same case several years later, when in Missouri v. Jenkins, 115 S.Ct. 2038 (1995), it held that courts cannot run school systems indefinitely, but only for the duration of curing a carefully defined constitutional violation.

4. See, e.g., The Slaughter-House Cases, 83 U.S. 36 (1873) (eviscerating the 14th Amendment's "privileges or immunities" guarantee); Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (eliminating any substantive "public use" requirement for takings of private property).

5. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942) (recognizing virtually unlimited congressional power under the Commerce Clause).

6. Because the Constitution delegates limited powers to the government and reserves all others to the people, some scholars have argued persuasively that courts should begin their constitutional analysis with a presumption in favor of liberty. See, e.g., Randy E. Barnett, "Getting Normative: The Role of Natural Rights in Constitutional Adjudication," 12 Constitutional Commentary 93 (1995); Richard Epstein, Takings: Private Property and the Law of Eminent Domain (1985); Roger Pilon, "Freedom, Responsibility, and the Constitution: On Recovering Our Founding Principles," 68 Notre Dame L. Rev. 507 (1993); David N. Mayer, "Justice Clarence Thomas and the Supreme Court's Rediscovery of the Tenth Amendment," 25 Capital L. Rev. 339 (1996).

7. Quoted in Stephen Macedo, The New Right and the Constitution (Washington: Cato Institute, 1986), pp. 24-25.

8. The Federalist, No. 78 (Hamilton), (New York: Modern American Library, 1941), p. 505. This view was embraced by Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803). Hamilton understood the importance of placing limits on judicial power as well. Although "liberty can have nothing to fear from the judiciary alone," he observed, "it would have everything to fear from its union with either of the other two departments" (The Federalist No. 78, p. 504)-precisely what happens with judicial overreaching today.

9. The Federalist No. 58, pp. 505-506.

10. Liberal commentators, for instance, probably would include more criminal cases, and likely would come down on the other side of the race preference cases that are heavily represented in our civil liberties cases, so that the more "liberal" justices would likely attain a higher civil liberties rating from such groups. Conservative commentators also likely would not agree with us on some of the decisions we've selected, such as the VMI case, which struck down the exclusion of female students, or the Fourth Amendment case involving drug testing in public schools.

11. For example, we have not included Evans v. Romer, 116 S.Ct. 1620 (1996), over which even the authors disagree.

12. A classic example is 44 Liquormart v. State of Rhode Island, 116 S.Ct. 1495 (1996), a unanimous decision in which the justices divided over the appropriate constitutional protection for commercial speech.

13. By "civil liberties," we generally mean the protections explicitly spelled out in the Bill of Rights and the 14th Amendment. By economic liberties, we mean such protections as private property rights, freedom of contract, and freedom of commerce. Though we think this division reflects a false dichotomy-economic liberties are in fact essential civil liberties-it is a common and readily understood distinction. The greater judicial protection commonly applied to civil liberties and lesser protection for economic liberties traces back to U.S. v. Carolene Products, 304 U.S. 144, 152 n.4 (1938). The present Court has taken some steps to reinvigorate protection for economic liberties. See, e.g., Dolan v. City of Tigard, 114 S.Ct. 2309 (1994) (restricting government's power to take private property without compensation).

Some cases are difficult to pigeonhole within these categories. We have classified commercial speech cases under "economic liberty," because the Court traditionally has accorded less protection to speech proposing a commercial transaction than for other forms of speech. We have classified asset forfeiture cases under "civil liberties" because they involve criminal prosecutions, even though the underlying issues involve property rights.

14. The first justice listed in the majority in each case is the author of the principal majority opinion.

15. The cases from this term reflect votes by Justice Harry Blackmun, who was replaced by Justice Breyer.

16. Chief Justice William Rehnquist was appointed associate justice in 1972 by President Nixon, and was named Chief Justice in 1986 by President Reagan. Justice John Paul Stevens was appointed in 1975 by President Ford. Justice Sandra Day O'Connor was appointed in 1981 by President Reagan. Justice Antonin Scalia was appointed in 1986 by President Reagan. Justice Anthony Kennedy was appointed in 1988 by President Reagan. Justice David Souter was appointed in 1990 by President Bush. Justice Clarence Thomas was appointed in 1991 by President Bush. Justice Ruth Bader Ginsburg was appointed in 1993 by President Clinton. Justice Stephen Breyer was appointed in 1994 by President Clinton.

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