Justice

How Liberals Pitched A Near-Perfect Game This Supreme Court Term

CREDIT: AP Photo/Bill Kostroun, File

The Supreme Court’s more liberal members did not have an absolutely perfect run in the Supreme Court term that concluded on Monday. Indeed, the term closed with losses for the Environmental Protection Agency and opponents of the death penalty, both of which were decided in a partisan 5-4 vote.

But, let’s face it, this was the term where the Court’s conservatives appeared to lose their mojo. A fair housing case widely expected to end in disaster for civil rights law surprisingly went the other way. Arizona’s Republican-controlled legislature lost its bid to strike down an anti-gerrymandering commission. A case seeking to gut the Affordable Care Act actually placed Obamacare on stronger legal footing then where it started. And, of course, there was marriage equality.

According to Tom Goldstein of SCOTUSBlog, liberals prevailed in 8 of this terms 10 most significant cases.

This was an anomalous term. Moreover, as Dartmouth political scientist Brendan Nyhan explains, the Court’s recently solicitude for liberal legal arguments is not necessarily a sign that the Court is trending left. Indeed, it may even be a counter-intuitive side effect of the Court’s conservatism.

As the Court trends right, according to a paper Nyhan cites, conservatives become more likely to “press their luck to take advantage . . . appealing more cases they lost in lower courts.” Meanwhile, “liberals would be less likely to appeal cases because they were more likely to prefer lower-court decisions and to fear creating damaging precedents.” The result is that more liberal rulings are affirmed because “litigants guessed wrong about how far the court was willing to go.”

Nyhan’s analysis most likely explains why liberals prevailed in several of this term’s cases. King v. Burwell asked the Supreme Court to gut the Affordable Care Act by refusing to read much of its text. Every single federal appeals court that considered the issue at stake in the Court’s fair housing case agreed that the plaintiffs arguments in that case were wrong. It’s unlikely that either of these cases would have reached the Court if conservative lawyers didn’t believe that now was a good time to shoot for the moon.

Goldstein also points to another factor that drove this term’s outcomes — though the Court has five conservatives and only four liberals, the liberals did a far better job of sticking together. In the 26 cases decided this term by a 5-4 or 6-3 vote, a member of the Court’s conservative bloc “voted with the left 25 times,” according to Goldstein. A member of the Court’s liberal bloc, by contrast, crossed over to vote with the conservatives only 3 times.

One explanation for this phenomenon is that it is, to a certain extent, easier to be in the minority than to actually be running the show. A dissenting justice only needs to decide that they do not want to take the law in the way the majority prefers, while the majority must agree on a common rationale for where they want to take the law together. It’s the same phenomenon that explains why Republicans in 2009-10 were able to unite behind opposition to the Affordable Care Act, but Republicans in 2015 were unable to unite behind a health care plan to address the Court’s pending decision in King. It’s easy to say “no,” but much harder to agree on the details of an affirmative proposal (or, for that matter, a majority opinion).

Nevertheless, there is a great deal more philosophical disagreement among the Court’s conservatives than exists among its liberals, and this fact most likely also played a role in this term’s outcomes. Since the 1930s, judicial liberals have largely united behind the framework described in the Supreme Court’s decision in United States v. Carolene Products. Under that framework, the will of the people holds primacy, and it is not the job of the judiciary to second-guess most decisions made by Congress and state lawmakers. Carolene Products recognizes exceptions to this general rule, such as when a law violates an explicit constitutional prohibition, when the law burdens certain minority groups, or when it “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” But these exceptions are just that — exceptions. They do not cut deeply into the general rule that the United States is a democracy.

(Most liberals also look beyond the Carolene Products framework to protect certain rights they view as fundamental, such as the right to an abortion, but these cases are also exceptions to the general rule.)

The Court’s five conservatives, by contrast, represent at least three — and possibly as many as five — distinct versions of judicial conservatism:

  • The Ideologue: Justice Clarence Thomas presents himself as if he believes that the Constitution should always be read as it would have been understood at the time of its drafting and ratification, though, in reality, his views align more closely with the economically libertarian views that dominated the Supreme Court in the early Twentieth Century. Thomas, for example, is the only justice who has openly embraced the reasoning of a long-overruled Supreme Court decision striking down federal child labor laws. This approach is not really a political approach to the law, or, at least, it isn’t a partisan approach. Rather, it often places ideology ahead of politics, occasionally leading him to side with the Court’s liberals.

    While Thomas often reads the Constitution in the way it was originally understood in 1918, there are some idiosyncrasies in his approach to the law. The Court’s sole African American justice, for example, has been more willing to permit laws restricting the use of racist symbols than his fellow conservatives — which may explain why he joined the Court’s four liberals in a decision permitting the state of Texas to refuse to issue specialty license plates featuring the Confederate flag.

  • The Partisan: If Thomas is largely loyal to a conservative ideology, Justice Samuel Alito is the Court’s most partisan justice. Shortly after President Obama won reelection, Alito gave a speech to an influential conservative legal society, where he suggested that “our current situation” mirrors a time of “utmost sterility, darkest night, most extreme peril.” Alito is the justice most likely to vote with the Chamber of Commerce, a litigant that frequently represents big business’s interests before the Court, and he is the only member of the Court’s conservative bloc who has never crossed over to throw a case to the liberals that otherwise would have been decided in a conservative direction.
  • The Reaganite: Chief Justice John Roberts has twice earned the ire of his fellow conservatives for his decisions rejecting lawsuits attacking the Affordable Care Act, but the conservative obsession with bringing down Obamacare by any means necessary — or, for that matter, with using the courts to undermine the modern regulatory and welfare state — was not part of America’s legal culture for most of Roberts’s career. Indeed, it appears to have emerged not long after President Obama took office.

    Roberts’s views closely mirrors the conservatism of the Reagan administration. He is skeptical of longstanding conservative boogiemen such as campaign finance or civil rights laws that do more than forbid the most obvious racist intent, but he also shares the liberal view that most policy should be set by elected officials and not the judiciary. “In a democracy,” Roberts wrote with King, “the power to make the law rests with those chosen by the people.” — a statement that is more controversial in conservative circles than it may seem.

The two remaining conservatives, Justices Antonin Scalia and Anthony Kennedy, are harder to pigeonhole. Scalia, like Thomas, purports to be an originalist who merely interprets the Constitution the way it was originally understood and who eschews politics. But Scalia often comes to the bench as an Alito in Thomas’ clothing — Scalia’s approach often seems far less principled and far more political than his rhetoric suggests. Scalia’s vote to nix the Affordable Care Act the first time, for example, conflicts with his own opinion in a 2005 case. And Scalia’s dissenting opinion in King commits what he himself labeled the most common “interpretive fault” committed by judges.

Kennedy, meanwhile, is the most difficult justice to pin down. His opinions often rely on vague principles such as “liberty” or “dignity,” and seem driven as much by Kennedy’s own sense of right and wrong as they are by legal precedents. Though his instincts are very conservative, they are not immovably so. He is the only justice to vote once to kill the Affordable Care Act and another time to save it.

The story of this Supreme Court term was often the story of the Court’s liberal bloc exploiting the different approaches of the Court’s conservative members in order to bring one or two of them along in each specific case. None of that means, however, that they will be able to repeat this success in the future. So far, at least, the big cases that the Court will hear next term include an attack on unions, a move to kill affirmative action, and, most likely, a major abortion case. These are issues where longstanding conservative legal theory, partisan politics and the previously expressed views of the five conservative justices all tend to point in the same direction.

Absent a change in the Court’s membership, in other words, it’s unlikely that liberals will see another term like the one that just concluded any time soon.