The Supreme Court's Liberal Tack, in Perspective
Conservatives were disheartened by the Court’s rulings Thursday in King v. Burwell and Texas Department of Housing and Community Affairs v. The Inclusive Project. They probably will be disheartened if the Court rules that gay marriage is a constitutional right, which seems likely. I suspect I got the authorship of the Arizona redistricting commission case wrong in my Supreme Court Bingo article: the opinion assignments make more sense if Justice Kennedy lost his majority in Din, which would suggest Justice Ginsburg is writing the redistricting commission opinion. That means conservatives may well be disappointed in the outcome of that opinion as well.
Unsurprisingly, conservatives are up in arms about the supposed “selling out” from Chief Justice John Roberts. Their reaction is something along the lines of Obi-Wan’s final words (from Obi-Wan’s point of view) to Anakin Skywalker: “You were the chosen one! It was said that you would destroy the Sith, not join them!”
This all seems to validate a recent New York Times story declaring that the Roberts Court has moved decidedly leftward, and that this term was shaping up to be the most liberal since the 1960s. But both this methodology and the conservative reaction suffer from the same problem: The inability to deal with shifting ideologies over long time periods.
Simply put, a Court where Justice William Brennan was the “swing vote” – which describes the Warren Court after Thurgood Marshall had replaced Justice Tom Clark in 1968 – isn’t really comparable to a Court where Justice Kennedy is the swing vote (for more on the methodological limitations of ideological measurements, see here and here). The issue matrixes have simply changed too much to meaningfully compare them. Or, to put it differently, if judicial liberalism is on the rise, it ain’t what it used to be.
For example, the Court in the late 1960s was probably prepared to declare shopping malls state actors subject to the First Amendment (compare here and here), to declare that the 14th Amendment applied to private action as well as state action (see here), and to allow busing across school district lines (see the vote breakdown here). One justice went so far as to personally enjoin the bombing of Cambodia (he was overruled in an opinion written by Marshall). I think some of these positions could fail to get a single vote on the present Court. It is hard to imagine the late Warren Court validating racial profiling in traffic stops, which the Rehnquist Court effectively did, unanimously, in 1996.
Moreover, plenty of today’s “liberal” decisions would have been considered downright reactionary in the 1960s (or 1970s). Consider the NFIB case, which upheld Obamacare in 2012, while finding that the individual mandate could not be supported by the commerce power. Until 1995, many scholars believed that the Commerce Clause had all but given Congress a general police power; the Lopez decision, which placed the first limits on congressional power in 60 years, was on the outer fringes of even conservative legal theory. NFIB actually reinforces, and to a certain extent expands that decision.
This says nothing of the Court’s holding that there are real limits to the spending clause, which garnered the votes of seven justices. I’m not sure there would have been more than one or two votes for this in the 1960s. By the standards of the 1970s, NFIB was a radically conservative decision, even when the substantive outcome is taken into account. By the standards of, say, the 1920s on the other hand, this was a radically liberal opinion, insofar as it accepts the basic New Deal framework (that there is at least one justice who is prepared to jettison that framework entirely shows just how far to the right the Court has gone).
Or consider the opinion validating Obamacare’s subsidies. While the plaintiffs’ theory of the case was perfectly plausible under current statutory interpretation principles (enough so that several Democratic-appointed lower court judges were cautious when ruling against plaintiffs), it also represented something of a reductio ad absurdum of textualism. If we were to have a debate over textualism in, say, the 1970s, one can imagine a purposivist asking, “So what if there is an obvious drafting error in a section that threatens an entire massive statute? What then?” The fact that conservatives expect the Court to go “full textualist” even in that circumstance – and that even liberal scholars like Abbe Gluck accept the basic textualist framework – again shows how far the debate has moved in the past 30 years.
What about the redistricting commission case? Assuming conservatives lose this one, it’s worth remembering that this position on the elections clause only had the support of three members of the Court in 2000 (when a similar argument was raised in Bush v. Gore); Justices Kennedy and O’Connor avoided the issue and may well have been against it. So even a 6-3 ruling against conservatives here would probably reveal no net shift in the positioning of the Court over the past 15 years. It is just that the expectations for conservatives have shifted.
Even older cases reveal the same tendency. The Court’s Gonzalez v. Carhart opinion, validating the partial birth abortion ban? On the one hand, it is conservative because it allowed further restrictions on abortion and effectively overruled a relatively recent decision. On the other hand, it operates within the Roe/Casey framework and could be considered liberal in that regard. From the point of view of the early 1960s, it is pretty out there in left field. From the point of view of 1973? I’m not so sure.
Justice Kennedy’s rulings in the 2000s on the death penalty for juveniles and the mentally challenged? Sure, he paired with the liberals here, and we might technically consider them “liberal” opinions. But these cases did not challenge the basic acceptability of the death penalty. This is unlike where things stood in the early 1970s, when liberals obtained a four-year moratorium on the death penalty.
We can go on and on: from the point of view of 1968, the Court’s opinions in Parents Involved v. Seattle School District No. 1 (invalidating a desegregation plan) and Shelby County (striking down Section 4 of the Voting Rights Act) don’t just look conservative, they look untenable. When judged against the development of the Court’s 14th and 15th Amendment jurisprudence in the 1990s and 2000s, they look supportable. When judged against what conservatives wanted (an end to busing and the end of Section 5 of the Voting Rights Act outright), they look like conservative disappointments.
What has effectively occurred here is that conservatives have racked up enough wins in the past 40 years that the Court’s jurisprudence has shifted rightward, to the point that moderately conservative justices have gone as far as they are willing to go, and are joining with liberals to stop further advances. There are exceptions, such as the Court’s gay rights jurisprudence, but overall, you will struggle to find a single area of the law that isn’t further to the right today than it was 50 years ago. The median justice on any given case is pretty conservative, but the things the Court is being asked to do are increasingly quite conservative (see also next term’s case about whether non-citizens should be considered when drawing congressional lines).
This phenomenon isn’t unique – it happens frequently, in fact. The best example occurred in the 1940s and 1950s, when liberal justices such as Felix Frankfurter and Hugo Black found themselves increasingly voting with conservatives as the Court began pushing leftward on civil liberties, equal protection, and due process law. From the point of view of the 1920s, this was still an extremely liberal Court, with almost every major contemporary legal debate from the 1920s resolved in the liberals’ favor. But from the point of view of what liberals wanted in the 1940s and 1950s – aggressive action on civil rights, complete application of the Bill of Rights against the states, and heightened scrutiny of laws that burdened minorities – the Court was almost reactionary.
So, no, overall the Court probably isn’t shifting leftward here. There are just limits to how far to the right some of the current right-of-center justices are willing to go, and the law is increasingly pushing up against those limits.