New York Times (Op-ed)
By Linda Greenhouse
July 7, 2016
The takeaway from the term that ended last week seems to be that by the time the Supreme Court, short-handed and stumbling in the wake of Justice Antonin Scalia’s death, finally got its act together at the end of June, it had — lo and behold — turned liberal.
Count me a skeptic.
Yes, of course, the two major decisions at the end of the term, University of Texas v. Fisher and Whole Woman’s Health v. Hellerstedt, had “liberal” outcomes: Affirmative action in university admissions survived by a margin of a single vote, and women’s access to abortion, in states trying their best to shut down abortion clinics, survived by a margin of two. Empirical political scientists code these results as liberal.
But to understand the Supreme Court under Chief Justice John G. Roberts Jr., it’s important to get beyond the binary liberal-versus-conservative label and see these and other recent cases in their full context. We have to ask what on earth the Fisher case was even doing on the court’s docket, three years after the justices had sent it back to the United States Court of Appeals for the Fifth Circuit (which had ruled for Texas) with instructions to look again and see whether the university had done enough to justify its modest use of race.
Once the conservative appeals court found for a second time that the Texas plan passed muster, that would have been the end of it for any mildly liberal Supreme Court. But the conservative justices — including, at the time, Justice Scalia — wanted to teach a lesson not only to the Fifth Circuit but also, it appears in retrospect, to Justice Anthony M. Kennedy, whom they deemed too squishy for having failed in the previous decision to slam the door completely on race-conscious admissions.
Surprise: This time, Justice Kennedy explained exactly why, in his view, the status quo on affirmative action should remain the law. Granted, he had never before embraced the precedents he cited. But the strategic miscalculation by justices impatient to undo those precedents hardly turns the Fisher outcome into the incarnation of liberalism.
Similarly, the abortion case has to be seen in context. The Fifth Circuit had upheld onerous new restrictions on abortion clinics in Texas, taking the startling position that when a state says it is regulating abortion for the purpose of protecting women’s health, no court should inquire into whether the regulation actually serves that goal. As Justice Stephen G. Breyer’s majority opinion last week made clear, that stance of complete judicial deference flies in the face of the Supreme Court’s rejection 24 years ago of “unnecessary health regulations” that impose a substantial obstacle to abortion access without conveying a health-related benefit.
Of the justices in last week’s majority, only Justice Kennedy was in the majority when the court decided the earlier case, Planned Parenthood v. Casey, which announced the “undue burden” standard that Justice Breyer’s opinion applied to the Texas law. What we learn from the fact that Justice Kennedy joined Justice Breyer’s opinion is that he still means now what he said back then — not that he has suddenly turned into a liberal. What’s surprising is not Justice Kennedy’s vote, but that the three justices who dissented — Chief Justice Roberts along with Justices Clarence Thomas and Samuel A. Alito Jr. — were willing to close their eyes to the weight of precedent and evidence. (These three, along with Justice Scalia, would have permitted the regulations to take effect without Supreme Court review, dissenting in June of last year when the court voted 5 to 4 to grant a stay of the Fifth Circuit’s ruling to permit the clinics to remain open while they appealed.)
It’s worth remembering that today’s conservative justices are a good deal more conservative than the liberal justices are liberal. Judicial liberals have been playing defense for decades, while judicial conservatives have grown ever bolder in re-purposing existing doctrine to the service of their agenda. In the Roberts court, the First Amendment is a prime example. Only Justice Scalia’s death and the resultant 4-to-4 tie in Friedrichs v. California Teachers Association kept the court from invoking the First Amendment to cut the financial legs out from under public employee unions. The claim by the anti-union forces was that the First Amendment shielded them from having to pay that portion of union dues that support the union’s collective bargaining activities — in other words, that they had a constitutional right to free-ride on the money and work of others.
As with the Fisher case, we have to ask why this case was on the court’s calendar. Supreme Court precedent was clear that the required dues payments were constitutional, and no lower court had ruled to the contrary. The answer is that the litigation that became the Friedrichs case was served up in response to the open invitation that Justice Alito had issued in two earlier labor cases, cases that had fallen short of providing the vehicle he needed to reach the First Amendment issue. A 5-to-4 decision against the unions appeared inevitable when the case was argued on Jan. 11, barely a month before Justice Scalia’s unexpected death. It was the result of fate rather than a turn to the left that the unions emerged from the term unscathed.
It’s possible, of course, to massage the Roberts court’s recent actions sufficiently to fit a liberal frame — although don’t tell that to the millions of undocumented immigrants who had pinned their hopes on the Obama administration’s deferred-deportation program or to Justice Sonia Sotomayor, whose dissenting opinion in Utah v. Strieff, a Fourth Amendment search case, was a powerful warning of what happens when the police are free to stop people in the hope that something might turn up. The same-sex marriage ruling, Obergefell v. Hodges, just passed its first anniversary. That 5-to-4 decision was a liberal ruling, wasn’t it? Well, yes, although by the time the Supreme Court weighed in, lower courts, as well as voters, were embracing marriage equality at a rapid clip; the justices overturned the single federal appeals court to have rejected the marriage claim. The answer to the question Chief Justice Roberts posed in his dissenting opinion, “Just who do we think we are?” might have been: “We’re the ones who closed the barn door after the horses were gone.”
Does it matter whether people are right or wrong in attaching a liberal label to the Roberts court? It’s worth trying to understand what’s driving this conversation. While liberals and conservatives may agree on little else these days, they seem to agree on this — but for very different reasons.
The rallying cry to the conservative base is: We’re in a fight to get the Supreme Court back, and in the meantime at least to keep it from tilting further to the left. The motivation on the liberal side is harder to figure. I hope I’m not unfairly detecting a note of triumphalism: We’re winning because our ideas are better.
If I’m right, I think that’s dangerous. While I agree that these particular ideas are better, that’s not why they have gained a toehold in a court that not too many years ago was being described as the most conservative Supreme Court in modern United States history. It’s because the other side has gone to such extremes — witness the abortion case with its partnership between the Texas Legislature and the Fifth Circuit. To reject a conservative extreme doesn’t make the court liberal. Rather, it puts the court — increasingly over the dissent of the chief justice, it’s worth noting — in the zone of mainstream reasonableness.
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