Michelle Dubert: Taking on the myth of the conservative Supreme Court

I often hear clamor from the Democrats about the right's stronghold on the federal government; they assert that Washington houses a conservative Congress, a conservative chief executive and a conservative Supreme Court, equipped with its lifetime members.

But I disagree. While the right does in fact occupy two branches, the left gets the remaining one.

Despair not, Bleeding Hearts! Though the Supreme Court used to dependably sway to the right, the most important decisions from the past year show the contrary.

The first Bush administration brought the initial squabble, when George H.W. Bush appointed David Souter and Clarence Thomas. Souter, of course, now boasts one of the most liberal track records on today's bench.

2000's Bush v. Gore 5-4 decision appears to be a classic illustration of a "conservative court." The Republicans -- Chief Justice William Rehnquist, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Thomas -- ruled for George W. Bush, while the Democrats -- John Paul Stevens, Souter, Ruth Bader Ginsburg and Stephen Breyer -- favored Al Gore. Frequently forgotten, however, is the Court's 7-2 ruling just days later that discontinued further recounts in Florida, citing them unconstitutional (only Ginsburg and Stevens dissented).

But since last June, the Supreme Court had four prime opportunities to exercise its conservatism and blew each one. The outliers in these cases were Justices O'Connor and Kennedy, ironically both appointees of President Reagan. One should wonder how conservative they really are when they rule contrary to their mainstream on such crucial issues. Perhaps they're not as right-leaning as commonly portrayed.

For example, in June of 2003, Grutter v. Bollinger presented the Court with an archetypal example of affirmative action, giving them the optimal juncture to reverse the policy. The Court ruled 5-4, holding that the University of Michigan Law School's considerable weighting of race as a determinant in admissions was constitutional. Conservatives largely oppose any program providing preferential treatment contingent upon race; inside the Court, however, that concept evidently doesn't resonate.

The five alleged conservatives could have easily touted the right-wing agenda and taken a step toward equalizing admissions. Instead, they ruled in favor of the University of Michigan's existing method. Justices Rehnquist, Scalia and Thomas, the three reliable conservatives, voted against the school's policy, alongside Kennedy. Justice O'Connor ruled with the liberals to give them the majority. She also wrote the Court's opinion for the case.

Liberal columnist David Broder of The Washington Post concluded in his Dec. 28 column, after bashing the Bush White House and Republican Congress, "But, hey, Sandra Day O'Connor prevailed on the Michigan affirmative action case and Antonin Scalia lost. So things could be a lot worse." What an optimist! But if Broder praises Justice O'Connor, one can only speculate on her ideology.

The Supreme Court's next schism arrived three days after Grutter, in Lawrence v. Texas. The Court ruled 6-3 to provide constitutional protection for sodomy. The case focused not specifically on the act of sodomy, but the constitutionality (under the Fourteenth Amendment's Due Process clause) of a Texas statute that prohibited certain sexual conduct by individuals of the same sex.

Granted, the content of the law is controversial, and it is a touchy issue that politicos on both sides frequently attempt to avoid. But regardless of one's opinion on sodomy, homosexuality, privacy or Christianity, the Court issued an activist ruling. Justices Kennedy and O'Connor voted with the four staunch liberals. Kennedy gave the Court's opinion, citing the European Court of Human Rights as his reasoning.

Last time I checked, the United States doesn't share a constitution with any European nation. Every social studies, history and political science course I've taken has reinforced the idea that America retains its own code of law, which thereby dictates impending legislation.

Yet the most egregiously botched opportunity probably arrived on Dec. 10, 2003, in McConnell v. Federal Election Commission, regarding the McCain-Feingold Campaign Finance Bill. In a 5-4 ruling, the Court favored a ban on soft money raising and spending, and the airing of soft-money-funded television ads near an election. In yet another activist decision, Justice O'Connor again supplied the fifth vote, this time by flouting the First Amendment and its guarantee of free speech.

Having trouble measuring this verdict's liberalness on the political scale? When in doubt, conduct the Antonin Scalia litmus test.

Scalia wrote in response to the ruling, "This is a sad day for the freedom of speech," and marveled at how the Court "would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government." He then added, "We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy." That means it's pretty liberal.

Just this Wednesday the Supreme Court issued another 5-4 ruling in State of Alaska v. United States Environmental Protection Agency, upholding the EPA's right to overturn Alaska's antipollution policies. The decision severely damages states' authority over their environmental regulations. O'Connor was once a loyal advocate of states' rights. Now she's providing the fifth vote to create liberal majorities in influential cases.

Maybe the left needs to clarify their definition of "conservative." Over the past few months, liberals hauled in some major victories from a bench allegedly packed with right-wingers.

Michelle Dubert is a College freshman from Closter, N.J. Department of Strategery appears on Mondays.

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