Are aging liberals behind the Court’s rightward shift?

Does the apparent rightward momentum of the U.S. Supreme Court have more to do with the age of the justices?

That is a theory one member of the Supreme Court press corps put forth Saturday during the American Constitutional Society’s National Convention here in Washington.

Dahlia Lithwick, who covers the Court for Slate said that the conservatives on the court benefit from the youthfulness of the Court’s newest members: Chief Justice John G. Roberts, Jr. and Justice Samuel Alito, Jr.

“It’s like watching a very young, very, very energized bloc of four conservatives on the Court playing keep away with the ball,” Lithwick said of oral arguments at the Court. “You have this sense that it almost a machine, the way Roberts and Alito and Scalia at oral arguments are throwing the ball to one another. There is a sense that they are working in concert, they are all playing from the same playbook. There is no analogous sense from the left of the court. You have a sense that energy has shifted.”

Leaving swing voter Justice Anthony Kennedy aside, the average age of the Court’s so-called liberal bloc – Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer – is 75. The average age of the conservative counter-faction – Roberts, Alito and Justices Antonin Scalia and Clarence Thomas – is 60.5.

“It really does highlight the age of the liberals on the Court,” Lithwick said. “It highlights some sense that ‘our time has passed’ and you really see that oral argument. . . . There is a colossal jolt of energy on one side that you just don’t see on the other.”

Tony Mauro, who covers the Court for Legal Times, said the recent book tours of Scalia and Thomas helped to bring more attention to the conservative jurists.

“It’s remarkable how talkative the justices become when they have books to sell,” Mauro said. . . . “They have this forum on 60 Minutes and elsewhere. I think we are hearing a lot more from the conservative side.”

Mauro also pointed out that the ‘L’ word is has a different meaning on the Court nowadays.

“The fact that the liberals aren’t in many respects liberals in the sense of [Justices William] Brennan and [Thurgood] Marshall,” he said. “Breyer and Ginsburg are fairly moderate in a lot of ways.”

The New York Times’ Linda Greenhouse told the audience that the one reason for the apparent shift in energy is the recent spate of close-call decisions won by the conservatives.

“It’s harder to get energized when you are playing defense,” Greenhouse said. “So I think actually that [Breyer, Souter, Ginsberg and Stevens] have a lot of intellectual energy. I wouldn’t want give the impression that they sort of are asleep at the switch. I think their role as they see it now is to keep [too-conservative rulings] from happening. That is not as visibly an energetic position to be standing on.”

You can watch the video of the panel discussion here.

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