Federal Courts and Nominations

Will ‘liberal drift’ hold for SCOTUS’s next term?

After justices handed liberals a string of victories, court watchers wonder whether trend will hold next term


by Naureen Khan

October 5, 2015


WASHINGTON — Following a historic term in which a Supreme Court with a conservative majority shocked and delighted liberals with decisions affirming same-sex marriage and the Affordable Care Act, the Justices will begin anew this month with a fresh slate of cases.


The issues that the Supreme Court is scheduled to take on this session are no less significant or controversial. In Fisher v. University of Texas at Austin, the justices will weigh the legality of public universities’ affirmative action programs — a case that could have wide ranging implications for higher education.


Friedrichs v. California Teachers Association has the potential to deal yet another blow to already-battered public sector unions by determining whether or not all employees have to pay dues to an organization that engages in political activities.


And in Evenwel v. Abbott, the Supreme Court once again steps into the contentious arena of voting rights, determining whether lawmakers should account for total population or only the population of eligible voters — excluding immigrants — when drawing state Senate districts in Texas.


The high court under Chief Justice John Roberts, generally considered conservative with its five justices appointed by Republican administrations, surprised many this year by issuing counterintuitive decisions on a number of issues. In June alone, the court struck down state same-sex marriage bans, effectively legalizing gay marriage across the country. It upheld the constitutionality of the subsidies given under the Affordable Care Act, salvaging a cornerstone of President Barack Obama’s legacy. In addition, the court upheld campaign finance regulations prohibiting judges from soliciting donations and guarded against employment discrimination on the basis of pregnancy and religion.


An analysis conducted by the New York Times in June found that the Roberts court issued liberal decisions in 56 percent of the cases that were considered in the last term, using a standard developed and widely accepted by political scientists. It was the highest percentage of liberal decisions since the historically progressive era when Chief Justice Earl Warren presided over the Court in the 1950s and 1960s.


“There’s been some liberal drift on this court,” said Lee Epstein, a law professor specializing in the Supreme Court at Washington University in St. Louis. “Last term was a very liberal term compared to the last forty years, but it’s not just the last term.”


Liberals’ success on the Supreme Court could partially be attributed to their unified front. The progressive wing — including Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor — frequently voted as a bloc while conservative consensus on the other side of the court often fractured. Justice Anthony Kennedy, appointed by the Reagan administration in 1978, in particular was a key swing vote, siding with the liberal justices on both same-sex marriage and the health care ruling.  


“Any answer to this puzzle has to lie with Kennedy and why he seems to have moved leftward,” Epstein said.


Whether the leftward drift holds in the next session, however, is an open question. The Roberts court has hardly handed down decisions uniformly friendly to liberal causes. In 2010, the Supreme Court opened the door to unlimited spending in elections by third party groups in the landmark Citizens United v. FEC decision. Two years later, it invalidated a key section of the Voting Rights Act. And in the last session, it also ruled against death row inmates on whether contested lethal injection drugs could be used in their executions, and against the Obama administration in a case involving environmental regulations.


David Gans, a lawyer with the left-leaning Constitutional Accountability Center, said the Roberts court is still a conservative one with a history of right-leaning decisions. The justices’ series of rulings siding with liberals, he said, may have had more to do with the overreach of conservative activists, who were making strident claims before the court that a majority of the justices felt compelled to reject.


“There was an incredible progressive moment with the string of victories that closed out the term but it’s dangerous to use how one term ends up as the basis of how you view the Roberts court,” he said. “If you look at the first ten years, you see a court that’s extremely conservative and moved the law to the right in a number of ways. The question is are we going to see more of that?”

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