Conservatives be patient, the Court is on our side!

Blog / July 12, 2009

Check out this post Brianna Becker, our Vice Chairman of Chapter Development sent over. Great insights on the Supreme Court!


June 29th marked the end of opinions issued in the 2008 Term of the Supreme Court. As Chief Justice John Roberts continues to adjust to his position on the bench, (or to adjust the bench to his position, as some might argue), legal observers are comfortably adjusting to this openly Conservative Court. Even if the many pages of opinions are tough for laymen to read, the judicial tea leaves are not. Roberts is chipping away at liberal precedents dating back to the Warren Court, and using his Conservative majority to pen today’s prudent return to the Right. By looking at a few of this term’s biggest cases covering some of the most controversial issues like affirmative action and the Voting Rights Act, it’s clear to see that Roberts is leading the Court towards a Conservative Revolution in a very unrevolutionary way.

Here are small summaries of two of the most publicized cases of the 2008 Term, and what they signal for Conservatives looking for a return to judicial restraint and strict construction of the Constitution.


1) Ricci v. DeStefano

The most anticipated case of the term involved a claim of race based discrimination from white firefighters in New Haven Connecticut. In short, New Haven Conn. denied promotions to all their firefighters because the results of a merit test showed that a disproportionate amount of those deserving recognition were white. The firefighters claimed discrimination, and the state argued that in order to comply with Federal Anti-Discrimination Laws, they had no choice but to throw out the test so they wouldn’t offend those minorities which the laws intended to be protect. This case was closely watched and debated not because of Supreme Court nominee Sonia Sotormayor’s small role, but because it would answer a question the Court has asked for decades: How long will we need Affirmative Action in America? Based on Kennedy’s opinion which eroded the city government’s interest into unconstitutional dust, and the suggestive nods at deciding the fatal Constitutional question in a later case, it appears Affirmative Action may be nearing it’s end. Judgment was found for those firefighters denied reward, and the lower court on which Sotormayor sits was overruled. With this case as precedent, positive social statistics, and a few more terms, Roberts can confidently restore the color-blind Constitution.


2) Northwest Austin Municipal Utility District Number One v. Holder

Just as the time left for Affirmative Action may be running out, so goes certain burdens on states under the Voting Rights Act. The VRA has been extended by Congress twice, but a recent decision by the court involving the Northwest Austin Municipal Utility District all but rules out a third extension. Like the Ricci case, the Court denied to go so far as to directly rule on the Constitutionality of the major statute at play, the Voting Rights Act, but did write extensively on the excessiveness of the burden placed upon states and small local governments now generations removed from segregation. The Court found in favor of the small Water District, saying that it could apply to opt out of Federal oversight, calling into question the legitimacy of the same policy still at play in 15 other states.



These two cases show Roberts’ top priorities for his Court: utmost respect for precedent, and a steady  rule of law. The Court’s history shows “revolution” (that is, the shifting of legal precedents in many areas from one side of the political spectrum to the other) can come in one of two ways. Quickly, but at the cost of controversy and respectable legal reasoning, or prudently, preserving a logical stream of precedent, and the public respect only a non-activist Court can attain.

Roberts conservative credentials cannot be doubted. I believe he does deeply desire to return Conservative principles to the Supreme Court’s jurisprudence as quickly as possible. Yet he wants to make sure they are firmly rooted in precedent, as to ensure their survival. This takes time to procure, and the only 54 year old Roberts has it.

To those Conservatives leery of this strategy, I understand your anxiety. In a time when cases like Roe v. Wade stand, and the line between Nation and State is overstepped daily by a greedy Congress, we all want change. However, I ask you to be patient. Remember that just because Chief Justice Roberts refuses to take huge leaps, that does not mean he is not proceeding with firm steps. He is practicing prudent jurisprudence, huggint to the Constitution and the legacy of the Court,  rather than the shaky activism of the Warren Court days which is criticized by learned observers from across the political isle.

Change that would have the Founding Fathers finally sighing in relief is on the way, just be patient.

Brianna Becker is a Senior at the University of Texas at Austin. She is an avid Court Watcher and is preparing for law school next year.