The Active Originalist: A Look at the Left Leaning Roberts Court

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Popular belief among many circles is that the United States Supreme Court, under the tenure of Chief Justice John Roberts is a solidly “conservative” court.

But the numbers say otherwise.

As a recent New York Times feature illustrated[1], the Roberts Court issued liberal decisions in 56 percent of cases over this last term, according to the Supreme Court Database using a widely accepted standard developed by political scientists. That is the third consecutive term it has come down on the left side of the argument in the majority of the cases before the Court and the highest since the era of the notably liberal bench of the 1950s and 1960s led by Chief Justice Earl Warren – indeed the most progressive court in U.S. history (70 percent of decisions).

Most notably, the Roberts Court upheld the Affordable Care Act (ACA) once again from another legal challenge, upheld grounds for housing discrimination claims based off evidence of unintentional disparate impact, and legalized same sex marriage in all 50 states, among other anti-discrimination rulings.

The New York Times pointed out that “on campaign finance, gun rights, voting laws, race and abortion, the justices have delivered strongly conservative rulings” since Roberts became chief justice. “But the court does seem to have drifted slightly to the left” since then, “in part because of rulings on gay rights, health care and the environment.”

Justice Anthony Kennedy noticeably remains the swing vote on the Roberts court after the departure of Justice Sandra Day O’Conner in 2006, siding with the four liberal justices in the most prolific 5-4 cases this past term.

Indeed, while Roberts may be chastised in conservative circles for his rulings on the ACA, he’s been consistently conservative on almost every other decision he’s handed down on the court. Even Justice Clarence Thomas, regarded by most as a solid conservative justice, sided with the liberal justices over the last few terms in slightly more cases than Roberts, such as Walker v. Texas Division, (576 U.S. 144 (2015).)[2]  and Zivotofsky v. Kerry, (576 U.S. 628 (2015).)[3]. The former case involved whether specialty license plate designs constitute government speech, while the latter decided if a federal statute that directs the Secretary of State to record the birthplace of an American citizen born in Jerusalem as “Israel,” if requested to do so, impermissibly infringed on the President’s power to recognize foreign states.

While Antonin Scalia has long been regarded as the most conservative justice on the court since his appointment nearly 30 years ago – which was vividly illustrated by some colorful dissents over the last term – Justice Samuel Alito has delivered some solidly right-of-center opinions since joining the court in 2006. The libertarian CATO Institute[4] described Alito as “a conservative jurist with a libertarian streak.”

It’s also worth noting that the four liberal justices on the Supreme Court – Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor – have all voted on the left in nearly every major decision like an unbreakable block. In fact, according to statistics kept by SCOTUSblog,[5] the four left-leaning judges on the bench agreed with each other an average 93 percent of the time in last term’s cases.

By contrast, the other five justices agreed with each other 75 percent of the time during the last term and only rises to 79 percent if you exclude Kennedy.

Indeed, over all the cases taken by the Court during the 2014-2015 term, Kennedy ended up agreeing with his conservative colleagues in just 69 percent of decisions vs. 80 percent of decisions from the liberal justices.

Going forward, there is certainly no doubt Kennedy remains the swing vote on the bench to watch for in closely held 5-4 decisions.

The Court will definitely be in the news again next term as it has agreed to take on highly controversial cases involving Texas’ new abortion law which mandates that all abortion clinics must upgrade their facilities to hospital-like standards; another affirmative action challenge that could eliminate or strongly limit racial preferences in higher education; and whether mandatory “fair share” union dues that state workers in 25 states must comply with are constitutional violations of First Amendment rights. Kennedy historically has a right-leaning decision record in these areas of law.

By John Giokaris

[1] Alicia Parlapiano, Adam Liptak, and Jeremy Bowers, The New York Times, The Robert’s Court’s Surprising Move Leftward, June 29, 2015, http://www.nytimes.com/interactive/2015/06/23/upshot/the-roberts-courts-surprising-move-leftward.html?_r=1&abt=0002&abg=1.

[2] Adam Liptak, The New York Times, Supreme Court Says Texas Can Reject Confederate Flag License Plates, June 18, 2015, http://www.nytimes.com/2015/06/19/us/supreme-court-says-texas-can-reject-confederate-flag-license-plates.html.

[3] Adam Liptak, The New York Times, Supreme Court Backs White House on Jerusalem Passport Dispute, The New York Times, June 8, 2015, http://www.nytimes.com/2015/06/09/us/politics/supreme-court-backs-white-house-on-jerusalem-passport-dispute.html.

[4] Ilya Somin, CATO Institute, Alito’s Libertarian Streak, November 10, 2005, http://www.cato.org/publications/commentary/alitos-libertarian-streak.

[5] Supreme Court of the United States Blog, SCOTUSblog Statistics, June 30, 2015, http://www.scotusblog.com/statistics/.


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