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Activist? Pro Business? Conservative? What are the Roberts Court's Leanings?

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By William Peacock, Esq. on October 18, 2013 2:55 PM

"If it's measured in terms of readiness to overturn legislation, this is one of the most activist courts in history ... This court has overturned more legislation, I think, than any other."

Sorry, Justice Ginsburg, but you, ma'am, are incorrect.

What's the popular perception of the Roberts Court? It's conservative, dominated by four conservative justices and one semi-conservative swing vote. It's activist, striking down decades-old anti-discrimination voting rights legislation. It's pro-business, ruling for corporate interests consistently.

Are those assertions correct?

Conservative Ideology? A Bit.

Is the Roberts court atypically conservative? It depends on who you're asking. In a business-related study we cited back in May, the researchers found that the court was only slightly to the right of the Berger and Rehnquist courts, though the study noted also that "conservative" is a vague term, encompassing everything from libertarians to "Cold War liberals" to social conservatives. They attempted to measure only "business-liberal and business-conservative Justices."

But back in 2010, Adam Liptak, of The New York Times, cited a number of studies that showed that during the Roberts Court's first five years, it issued conservative decisions 58 percent of the time. Compare that with the Burger and Rehnquist courts, which issued conservative decisions 55 percent of the time, and the Warren Court, at 34 percent.

One final stat: that study also found that four of the top six most conservative justices (out of 44 sitting justices since 1937) were on today's Court (Justice Thomas holds the title). Even swing-vote Justice Kennedy is in the top 10.

Activist? Not So Much.

This is where Justice Ginsburg apparently whiffed it. According to the Times, the Roberts Court has overturned legislation in only 3.8 percent of cases. That's the lowest rate since the Vinson Court of 1946-1953. The Warren Court, despite its reputation, only came in second, at 7.1 percent, while the Burger Court holds the title at 8.9 percent.

What about stare decisis? Again, the Roberts Court falls behind the Vinson Court as the second-least likely to overrule precedent, at 1.7 percent, compared to Vinson's 0.8 percent. The Warren and Rehnquist courts tied at 2.4 percent.

The numbers do fuel the conservative label, however, as only 59 percent of Roberts' legislation invalidation went in a "liberal" direction, the lowest of all five courts. (Warren's court leaned left a whopping 91 percent of the time.) And in stare decisis be damned scenarios, the Roberts Court went left 30 percent of the time, less than the three preceding courts, and trailing only the Vinson Court.

Pro Business? Definitely.

We covered the pro-business argument earlier this year, so we won't go quite as deep on the topic, but suffice it to say that the court's rulings have been very corporate friendly. Five of the top ten most frequent pro-business justices sit on the court today. Justice Ginsberg, the liberal lion, is at the mere median of all justices since 1946.

Plus, the Chamber of Commerce has the second-highest certiorari success rate amongst amici. We won't even mention Citizens United. Or Comcast. Or Dukes. Or Concepcion.

You get the point.

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