Liberals were breathing a sigh of relief as the Supreme Court ended its term on Monday. The worst hadn’t happened. Millions of people could keep their subsidies under the Affordable Care Act, 6-3. Same-sex marriage bans fell, 5-4. Disparate impact claims under the Fair Housing Act, long considered doomed, were left in place, 5-4. The data wizards at The New York Times’ Upshot blog even declared this term the furthest left since the liberal heyday of Chief Justice Earl Warren.
Not so fast, warn progressive legal experts. “To say it’s a liberal turnaround really underscores just how conservative the last couple of terms have been,” said Melissa Murray, a law professor at the University of California, Berkeley.
“Just wait until next term,” said Neil Siegel, a law professor at Duke University, citing upcoming cases on affirmative action, which the court has already said it will hear, and abortion, which it is likely to take up. “This is a substantially more conservative court than it was when Sandra Day O’Connor was in control, with the notable exception of gay rights.” O’Connor’s replacement, Bush appointee Samuel Alito, has been a more reliable conservative vote than she was.
“Rumors of the court swinging left nevertheless seem wildly exaggerated,” wrote University of Maryland law professor Mark Graber in a blog post, adding, “All the justices have done in a few more cases then usual is limited the inroads conservatives are making on the status quo.”
The justices can only decide cases that are put before them. With a few exceptions — challenges to same-sex marriage bans, a pregnancy discrimination claim — they are getting and taking very right-leaning cases, often seeking to limit or undermine progressive laws. In this past term, conservative legal strategists may have simply overplayed their hand.
“This is a substantially more conservative court than it was when Sandra Day O’Connor was in control, with the notable exception of gay rights."'
With regards to King v. Burwell, conservative legal strategists’ bid to undo insurance subsidies in states that didn’t set up their own exchanges, Siegel said, “It never should have gone to the Supreme Court. In a different court, the claim would have been laughed out of the legal system.” Caroline Fredrickson, president of the liberal-leaning American Constitution Society, added that “it was a very weak case.”
The case dealing with the Fair Housing Act also presented a high bar. In that instance, the court was being asked to undermine a claim that had long been part of accepted law.
At the same time, with a few exceptions, liberals have given up trying their luck at the court.
“The going line is, ‘Avoid the Supreme Court at all costs.’ And I think that’s probably still true,” said Fredrickson. She also warned about the dangers to come in the next term, including in a public sector union case the court has just agreed to hear.
And Samuel Bagenstos, a law professor at the University of Michigan who won the pregnancy discrimination case this term, said the relatively liberal term this year also reflects which issues happened to bubble up. “The cases that came to the court this term are ones in which at least one or two of the conservative justices are willing to vote with the liberals,” he pointed out. Justice Anthony Kennedy, for example, voted with the Democratic appointees on housing discrimination, the Affordable Care Act, and same-sex marriage, but is a more uncertain vote on affirmative action, unions, or abortion.
"Rumors of the court swinging left nevertheless seem wildly exaggerated."'
At the same time, the liberals stuck together this term, largely voting and speaking in one voice, a unity the senior liberal justice Ruth Bader Ginsburg has said she prefers. “These cases were not ones that exposed a lot of the divisions that exist among the more liberal justices. There still are those divisions,” Bagenstos added.
Almost all of the surprisingly liberal opinions were written by a conservative justice who crossed the aisle, either Kennedy or Chief Justice John Roberts, giving them wide leeway for determining its scope and framing. Justices have the option of writing separate concurrences that lay out different reasoning while coming to the same conclusion, which didn’t happen often in big cases where liberals won this term. They can also try to influence the majority opinion, which also didn’t seem to happen much
“My guess is that there has long been in place an agreement among the 'liberal' justices not to do anything that might upset Kennedy in hot-button cases in which he is in their camp and has taken the majority opinion for himself,” wrote University of Illinois Law professor Jason Mazzone in a blog post. He lamented the result in Obergefell v. Hodges, the same-sex marriage opinion.
So did Murray. “I don’t think the marriage decision is necessarily the progressive gift that people think it is,” she said. “It’s rhetoric that can be used in the future to stymie the rights of unmarried people.” She pointed out that even as the opinion holds out marriage as the highest possible social state, “There are three justices who are not married. Justice Ginsburg is widowed. Justice Sotomayor is divorced. Justice Kagan has never married.”
Liberals are pessimistic about the fact that the court announced on the last day of the term that it would hear for the second time a case challenging the University of Texas for taking race into account after filling most its classes with the top 10% of high school students. “I expect fireworks in that case,” said Bagenstos. “It will be a big deal for colleges and universities across the country.”
And no one knows whether Kennedy will consider the newest crop of abortion restrictions, which are quite deliberately driving clinics out of business, a violation of the constitutional standard he himself set 25 years ago. In the end, the only thing that would mean a less reliably conservative Supreme Court would be if a Democratic president is elected, and that president has the chance to elect more justices.