The court’s liberals prevailed in most important cases, but it may not last
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Version 0 of 1. The Supreme Court was no less polarized this term, nor were its opinions any less divided. But its landmark decisions saving the Affordable Care Act and declaring that the Constitution provides a right for same-sex couples to marry create nationwide norms for an increasingly divided country. That’s not to say the rulings were popular, although polls show that the cases came out pretty much the way they might have if put to a national vote. But the court’s decisions in the two cases that will define the term imposed a blanket solution for states that are split by politics and ideology. Same-sex couples can marry no matter where they live. Federal benefits making health insurance affordable accrue whether a person lives in a state that is hospitable or hostile to President Obama’s health-care law. “This was a term when the major results were unifying for the country,” said Walter Dellinger, a longtime Supreme Court advocate and student of the court. “Had these decisions gone the other way, they would have created great divides between red states and blue states beyond the consequences of the issues involved.” It may not last. In the next term, the court could be pressed to decide whether states that restricted abortion rights or voting procedures or gun ownership have gone beyond what the Constitution protects. Already, the justices have chosen to again examine the use of race in college admissions. In each of these instances, the court may allow states to adopt widely diverging rules. And each Supreme Court term is different, more because of the individual issues raised than the evolution of the individual justices. Last year’s term ended with liberals angry about the conservative justices’ decision that religious liberty protects business owners from complying with a mandate to provide employees with contraceptive care. This year was one of the Obama administration’s most successful, with the court’s liberal justices compiling record majorities. The court’s four liberals — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — voted together close to 90 percent of the time and often were able to attract the occasional stray conservative vote that gave them a majority of five. SCOTUSblog publisher and lawyer Thomas Goldstein counted 26 cases this term with close votes where ideology played a seemingly important role. The liberal justices prevailed in 19 of them. On his list of the 10 most significant cases, the liberals were in the majority in eight. And in none of the cases did a liberal justice cross over to vote with conservatives. But — with the landmark exception of Obergefell v. Hodges, the case on same-sex marriage — their accomplishments did not move public policy to the left. The votes by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy in the Affordable Care Act case simply preserved the status quo. Kennedy provided the vote that protected a legal tool the government and civil rights groups use to prove housing discrimination, but no court had ever doubted it. “It really has to do with the questions they are being asked, not just the answers they’re giving,” Cary Franklin, a law professor at the University of Texas, said of the justices. Although liberal legal activists are rarely eager to engage a court they think is too conservative, legal activists on the right have been pushing issues important to them. The housing-discrimination case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, is a good example. Private businesses and some states have been looking for a case to ask the court whether plaintiffs suing under the Fair Housing Act must prove intentional discrimination or merely whether a challenged policy has a “disparate impact” on minorities. Conservatives for years have set their sights on disparate impact — Franklin said it was on former Republican attorney general Edwin Meese’s “wish list” of policies to kill — but courts consistently upheld it. It is unusual for the Supreme Court to take an issue when there is no split among lower courts, and it took three tries for the court to find a case that properly presented the issue. Whether to uphold disparate impact “is not going to be a hard question for the liberals,” Franklin said. But conservatives turned out to be more divided about overturning it, and eventually Kennedy sided with the liberals. Recognition of disparate impact, Kennedy wrote, “plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.” It was not the answer conservatives were looking for. Ginsburg has said that she thinks the four liberal justices are more effective when they speak as one voice. The conservatives, on the other hand, were much more likely to write separate concurrences and dissents, sometimes sniping at one another. Also telling is that in the most important cases in which the liberals prevailed, it was a conservative justice who wrote the majority opinion. Justice Antonin Scalia seemed to gig them for that in his dissent in the marriage case. He repeatedly criticized Kennedy’s rhetoric, writing that “I would hide my head in a bag” rather than join such an opinion, “even as the price to be paid for a fifth vote.” As it turned out, according to the SCOTUSblog statistics, Kennedy sided with the liberals in nearly half of the court’s 5-to-4 decisions. It is the first time in 10 terms that he sided more often with liberals in those close cases than with conservatives. The public seems to have noticed. Although most experts who watch the court think it has become more conservative, a new CNN poll shows that 37 percent of respondents say it is too liberal, compared with 20 percent who say it is too conservative. The number who say it is “about right” dropped from 46 percent three years ago to 40 percent now. Yet at the same time, majorities also said they approved of the court’s decisions on same-sex marriage and the Affordable Care Act, the cases that have received the most public attention. “Let’s see where we are after next term when the court returns to abortion and affirmative action and confronts union dues and the president’s discretion over immigration enforcement,” Dellinger said. It is still unclear how Americans will accept the national prescriptions the court has ordered. Conservative activists compare Obergefell to the court’s decision in Roe v. Wade that established a right to abortion. “Now everything the pro-life movement did needs to be done again on this new frontier of marriage,” Ryan T. Anderson of the Heritage Foundation wrote in a Boston Globe column. Justin Driver, a University of Chicago law professor who has studied polarization on the court, said it was years after Roe was decided that it became a cause. But he added, “I would just be astonished if this continues to be a divisive issue in five years’ time.” |