Civil and Human Rights

Conservatives help liberals win at Supreme Court

By Stephen Collinson and Ariane de Vogue

 

Washington –  Liberals on the Supreme Court pulled off the ultimate feat this term: shifting the bench to the left, often without even needing to pick up a pen.

 

With major rulings on civil rights cases, including decisions to back same-sex marriage nationwide and uphold Obamacare, the Roberts court offered liberals more than they had dared hope when the term opened last October.

 

And in some cases, it was conservatives like Chief Justice John Roberts and Justice Anthony Kennedy who delivered the biggest victories to the White House by writing the landmark opinions that upheld the health care law and articulated a constitutional right to marriage for same-sex couples. In the process, they infuriated Republican leaders and activists and helped cement civil rights and health care achievements into President Barack Obama’s legacy.

 

The term, which will have political implications that will reverberate into next year’s presidential election and for years beyond, ended on Monday with justices making clear their divisions on key cases in strongly worded opinions from the bench.

 

The loquacious Justice Antonin Scalia accused his colleagues of dispensing “jiggerypokery” and “goobledygook.” Roberts himself blasted the same-sex marriage ruling by reading his dissent from the bench –an unusual move for any justice, and something the Chief has never done. Then, Justice Sonia Sotomayor wrapped the term on Monday by accusing conservative counterparts of leaving prisoners exposed to death penalty injections she described as “the chemical equivalent of being burned at the stake.”

 

Although strongly worded dissents are not unusual on the Court, and the justices frequently insist they get on well personally, the last few days of the term included multiple illustrations of the sharp differences of judicial interpretation.

 

For example, after Justice Stephen Breyer said Monday that the death penalty was now “highly likely” to be unconstitutional, Scalia, in his final swipe of the term, complained his rivals on the bench appeared to be prioritizing personal political views over a faithful interpretation of the Constitution.

 

“It is not often in the law that so few have so quickly changed so much,” Scalia said, throwing Breyer’s words back to him from another case.

 

But when the tough talking is forgotten, the term, which also included scores of cases that do not get widespread media attention, will likely be most remembered for three major rulings — the rejection of a new challenge that would have gutted Obamacare over four words, the same-sex marriage decision and an unexpected reprieve for a key aspect of a federal housing discrimination law.

 

All three rulings delighted the Obama White House, and helped fuel a feeling last week that a sudden cascade of change was remaking political and social conventions on race, health care and civil rights.

 

But any expectations from those unfamiliar with the full scope of the Court’s work that Roberts, after a decade on the bench, would shift his jurisprudence would be misguided.

 

“I do think overall this is a conservative court,” said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center and a CNN contributor. But she added that on civil rights and equality issues, the Court this term had indeed delivered some progressive rulings.

 

In some cases, the Court’s apparent progressive turn was a product simply of the cases that were before the justices. While Kennedy joined the liberals on same-sex marriage and a case broadening the scope of a federal housing discrimination law, that does not mean he would line up alongside them on an abortion restrictions or an affirmative action case, both of which could be before the Court next term.

 

And any sense that Kennedy, appointed by Ronald Reagan, is on a long lurch to the left can easily be debunked by looking at the consequences of his vote in 2010 on the Citizens United case, which unleashed a torrent of campaign cash and has been vigorously criticized by Obama.

 

Still, in his passionate majority decision on Friday, Kennedy did reach the culmination of an increasingly progressive personal evolution over 20 years in one area of the law — gay marriage.

 

“As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death,” Kennedy wrote. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right,” he said in his 5-4 majority opinion.

 

Sam Erman, a University of Southern California law school professor who once clerked for Kennedy, said that the Justice’s swing vote in the same-sex marriage case was consistent with his rulings over time.

“Certainly, on issues of same-sex intimacy and commitment, he has seen the Constitution as protecting those spheres. I don’t think many people were terribly surprised,” said Erman.

 

While liberals outside the Court saw much to celebrate in the term, conservatives were dismayed by Roberts’ decision to — for the second time — vote in favor of Obamacare.

 

Despite the 6-3 ruling, the chief justice was quickly accused by conservative critics of selling out.

But in fact, many see his vote as being consistent with his jurisprudence developed over a decade on the Court, which debunks the notion the politics of a man who worked in the Reagan White House have slipped to the left.

 

In the health care case, his vote was a classic example of a justice examining what Congress actually meant when it wrote a law.

 

But the very next day, Roberts shifted to his more traditional allies — and the losing side of the same sex marriage case, arguing that the five justices on the other side had short circuited what should be a democratic political process in the states of approving same sex marriage.

Such an approach appears to be in line with his stated aim during his Senate confirmation hearings of behaving like an umpire calling balls and strikes and being reluctant to trample over lawmakers.

 

“Chief Justice Roberts seems to be in many cases taking a cautious approach deferential to the legislature,” said Chris Edelson, a Constitutional Law scholar at American University. “On health care and in his dissent on the marriage case, Roberts was reluctant to disturb decisions by elected officials.”

 

This term was not a complete victory for progressives. On the last day of the term, the Court ruled in favor of a controversial death penalty drug over the dissent of the liberals.

 

And Scalia issued an opinion striking a blow toward the Obama administration’s attempts to regulate harmful emissions from power plants through the Environmental Protection Agency.

 

Furthermore, there’s plenty for the White House to worry about in the next term, which begins in October.

 

A challenge to the President’s executive action to reform immigration laws, which conservatives have branded a massive overreach, could reach the Court’s docket next year.

 

The affirmative action case is already worrying progressives as Kennedy’s vote might be an unknown. The Court could also decide to consider an abortion case that could get to the heart of exactly how far a state can go to limit the procedure at a time when more and more states are passing strict laws.

 

And the next term will unfold in the heat of the quickening campaign for the 2016 election — meaning that its rulings will take on even more of a political hue — whether justices like it or not. And with several retirements of aging justices likely possibly looming in the next president’s term, the future ideological direction of the Roberts bench will be right at the center of the political debate going into the fall campaign in 2016.

 

By the fall of 2016, the high court’s “progressive spring” could be a distant memory.

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