Lee Epstein
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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Published in 2008. In the Tulsa Law Review's Symposium on the 2006 Term, 43: 651-672

Lee Epstein
Andrew D. Martin
Keinv Quinn
Jeffrey A. Segal

(Citations Omitted)

The verdict is in: Scholars, commentators, and even a Justice have coalesced around the idea that with John G. Roberts in the center seat, "conservatives seem to have reached the promised land." Some analysts are even convinced that "the rightward shift [on the Court] is likely to prove a lasting legacy of the Bush presidency.

No one can deny that the 2006 term, in particular, was a good one for conservatives. Of the seventy-one disputes the Court resolved after hearing oral arguments, only twenty-nine were victories for liberals. The rest were decidedly right-of-center, including the anxiously awaited Gonzales v. Carhart and Parents Involved in Community Schools v. Seattle School District.

But did 2006 represent a decisive break from the past, a true "transformation," as some analysts suggest? Relative to the Court's last major transformation—when Richard Nixon replaced Earl Warren with Warren Burger in 1969—the answer is no. As we explain in Part I, empirical scrutiny of the Court's voting patterns reveals no significant distinctions between the Rehnquist and Roberts Courts. And, as we show in Part II, while it is easy enough to point to several cases that may represent a break with existing case law—Parents Involved and Gonzalez, for example—it is no more difficult to identify areas of substantial continuity, such as criminal law and access to the federal courts. Moreover, even in particular cases—Parents Involved and Gonzalez, not excepted—our analyses suggest that the outcomes would have been no different had the Rehnquist, and not the Roberts, justices resolved them. In short, the transition from the Rehnquist to the Roberts Court is less a significant break than a continuation of the Republican Court era, an era that begin with Nixon's four appointees and has remained undisturbed ever since.

If relative continuity, and not dramatic change, is the more apt description, then reports of President Bush's "most enduring" legacy are either way premature, greatly exaggerated, or simply mistaken. This is not surprising. For the reasons we emphasize throughout, Presidents face considerable obstacles in leaving their imprint on an entire Court. Richard Nixon was able to overcome them but George W. Bush has not been so fortunate. As a result, conservatives must go on yearning and liberals need not fear—at least not for the time being.

Click here for the article (.pdf)
Click here for the data (Stata .dta file) (posted on March 10, 2008)