Did This Supreme Court Term Lean Left? Thank Anthony Kennedy More Than John Roberts

The past several days have seen much comment about how this Term of the U.S. Supreme Court has been a good one for the Left. This is in key respects true, and, for our part, CAC played important roles in – or was at the center of – three of the biggest victories of the Term, including King v. Burwell (representing leading Members of Congress and state legislators in successfully protecting the Affordable Care Act), Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. (helping defend a vital application of the Fair Housing Act), and Obergefell v. Hodges (helping win nationwide marriage equality under the Fourteenth Amendment).


A couple of caveats should be added to this “good Term for the Left” story. First, with Obergefell as a notable exception, most of the progressive victories came in cases that were brought to the Court by prosecutors, business interests or conservative legal activists seeking to move the law to the right, and the progressive victories consisted of a rejection of these efforts. This in part explains why the Court’s left flank appears more unified than the Court’s conservative majority.


Second, in response to the outpouring of vitriol from the Right directed toward Chief Justice John Roberts, it should be recognized that over the course of the October 2014 Term he remained, by and large, a very conservative justice. To be sure, John Roberts cast a sixth, or even a deciding fifth, vote for a progressive outcome in a handful of cases in his tenth Term as Chief Justice and, as CAC’s “Roberts at 10” series indicates, this is a bit of a trend over the past several Terms.  


But a closer look at this Term as a whole – and end-of-Term rulings in particular – indicates that the lion’s share of this Term’s leftward tilt is accounted for in the decisions and votes of Justice Anthony Kennedy. There were a total of ten cases in which the four liberal Justices joined with one member of the conservative bloc to create a 5-4 progressive outcome. In those cases, Justice Kennedy voted with the majority eight times. Chief Justice Roberts was in the majority only once, as many times as was Justice Clarence Thomas. 


The list of Kennedy-driven 5-4 rulings includes two of the three biggest victories for progressives this Term – Obergefell and Inclusive Communities – as well as a number of other cases on issues ranging from legislative redistricting to Fourth Amendment search and seizure. In all these cases, Chief Justice Roberts was among the conservative dissenters.