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Analysis: Talk of a more liberal Supreme Court misreads trends

Back row from left Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row from left Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, and Ruth Bader Ginsburg
Supreme Court photo | 2010

The Roberts court has made a “surprising move leftward,” writes The New York Times. Conservative justices have stopped “playing nice” and taken off the gloves, writes Politico.  Liberal justices are “legislating from the bench,” claim all manner of Republican candidates for president.

Those were the story lines emerging from the Supreme Court as it ended its 2014 term with extraordinary decisions that save Obamacare, constitutionalize same-sex marriage and make it easier to prove housing discrimination.

But much of that conventional wisdom is overstated, overly simplistic or just plain wrong, say court experts.  They say:

  • Today’s court is no more conservative or liberal than last year’s or the year before’s.  The justices are the same people.  The cases are just different.
  • Justice Antonin Scalia didn’t take off the gloves; he never had them on. His “nastygrams” have blasted other justices for much of his three decades on the court.
  • The conservative mantra about judges legislating new rights not enumerated in the Constitution depends on how one reads the Constitution.

In short, the conventional wisdom about significant movement to the left and toward incivility is as overstated as last year’s conventional wisdom about a new era of unanimity breaking outThat supposed unanimity was short-lived. This year had fewest unanimous opinions since 2010.

Grain of Salt

Jonathan H. Adler, a law professor at Case Western University, writing in the Volokh Conspiracy blog, discounts the Times’ claim of a “surprising move leftward.

Said Adler, “Much like earlier pronouncements that the Roberts Court was the most conservative in decades – particularly those based upon similar types of analysis, the article’s central claim needs to be taken with healthy dose of salt.”

The court applied its own dose of salt to the story line with two conservative decisions on the last day of the court term on Monday, upholding the current death penalty protocol used in states like Missouri and striking down EPA regulations of power plants. In addition, it agreed again to hear a challenge to the University of Texas affirmative action plan, once again threatening an end to affirmative action.

Eric Citron, a Washington lawyer at Scotusblog, wrote Monday that the decision to hear the affirmative action case “is yet another good example of why it makes little sense to think of the court as ‘moving left’ even though it IS accurate to say that the liberal wing of the court has prevailed more often this year than in previous years.”

What’s different this year is the cases, not the justices. The New York Times Upshot column suggested this term’s “liberal” decisions may mean “the types of cases the court is deciding have shifted. What seem like liberal decisions may instead represent conservative overreach” as conservatives overplay their hand bringing more controversial issues to the court.

No Golden Mean

Conservative critics have argued for decades that the Supreme Court has legislated from the bench in recognizing constitutional rights. That refrain returned loudly last week after the court found a constitutional right of same sex couples to marry.

Gregory Magarian, a Washington University law professor and former Supreme Court clerk, criticized the argument:

“The dissenters, exemplifying generations of conservative legal thought, pretend that some golden mean divides the proper realm of the elected branches from the proper realm of the court. Of course, they don't define that golden mean with any greater precision than that of the majority opinion against which they rail so loudly.

“In the real world, judges have to make judgment calls, and justices empowered to explicate the Constitution have to make judgment calls about constitutional rights. The job of constitutional law is to modulate the relationship between the people and the government in ways that give effect to prevailing, sturdy societal understandings.”

Sometimes the court makes mistakes, Margarian wrote, as it did in the 1857 Dred Scott decision denying citizenship to African Americans and in the “Lochner” era of cases striking down hundreds of worker protection laws.

“History then judges the court harshly, and society ultimately spurs the court to correct its mistake,” he wrote. “This decision (on same-sex marriage) is, among other things, a bet on history's judgment. It looks to me like a very sound bet.”

Liberty and privacy

Some of them most controversial decisions of the Supreme Court - where conservatives maintain the court is legislating – involve the attempt to define those rights that are fundamental to individual autonomy and privacy.

Over the past century, the court has found these essential individual rights include access to birth control, interracial marriage, sending children to parochial school, abortion, sexual relations between homosexuals, family living arrangements and, now, same-sex marriage.

None of these rights is listed in the Constitution, nor is the word privacy used anywhere. That’s why conservatives say the justices are legislating from the bench.  Protecting these rights, they say, requires new laws or constitutional amendments.

So where did Justice Anthony M. Kennedy find the right to same-sex marriage? One place was the due process clause of the 14th Amendment.

Due process may not sound as though it has anything to do with same-sex marriage or privacy or contraception. But the amendment says that states can’t “deprive any person of … liberty …  without due process of law.”

That due process protection of “liberty” is a principal fount of new fundamental rights recognized by the court.

Conservatives on the court agree that the due process protection of liberty includes a fundamental right to marry. But they say the only way to guard against judges inventing too many new rights is to limit those rights to those that have a long history and tradition. So the right of traditional marriage is protected, but not same-sex marriage.

Magarian from Washington University counters, “They miss two essential truths: first, that constitutional rights depend on more than tradition; second, that society has changed in ways that make today's decision not just credible but unavoidable.”

Original meaning

Scalia says it is easy to figure out whether the 14th amendment protects same-sex marriage by looking at whether the drafters of the amendment after the Civil War would have protected same-sex marriage.

The obvious answer is no.  But this is a slippery argument, say critics. 

At the time the 14th Amendment was adopted, drafters thought it permitted racial segregation and did not permit women to vote or have equal rights – all important rights that were recognized with the passage of time.

As Justice Kennedy put it in the same-sex marriage decision, “New insights” sometimes reveal new rights because “the nature of injustice is that we may not always see it in our own time.”

To Scalia, though, Kennedy’s claim amounted to "the mystical aphorisms of the fortune cookie."

Scalia’s ‘rage arias’

Scalia doesn’t just direct his strong language at liberals or fence-sitters like Kennedy. He used some of his strongest words to blast fellow conservative Chief Justice John G. Roberts’ opinion upholding the federal subsidies for state exchanges.

He accused Roberts as a “defense of the indefensible,” “interpretive jiggery-pokery” and “somersaults of statutory interpretation.” If that wasn’t strong enough he said the majority opinion was “pure applesauce.”

On Monday, dissenting from Justice Ruth Bader Ginsburg’s decision permitting Arizona voters to appoint a commission to redistrict congressional districts, Scalia wrote the decisions was “… outrageously wrong … utterly devoid of textual or historic support … flatly in contradiction of prior Supreme Court cases (and)…. obviously the willful product of hostility to districting by state legislatures.”

Ginsburg, one of the court’s liberal justices, is a good friend of Scalia’s. They appear together at often funny sessions to talk about the court.

Tony Mauro of the National Law Journal writes that Ginsburg “laughs off Scalia's written retorts and maintains a deep friendship with him — a relationship that will be portrayed in a new opera this summer. Composer Derrick Wang said Scalia's angry dissents reminded him of classic ‘rage arias.’”

Rage arias are nothing new.  In the 1990s Scalia glowered down the bench at Kennedy when he provided the deciding vote to bar public school officials from sponsoring prayers at graduation ceremonies. Then, in one of the early gay rights cases, he accused Kennedy and the majority of endorsing the "so-called homosexual agenda."

Two years ago, when the court threw out the Defense of Marriage Act, Scalia accused Kennedy of "argle-bargle." This year, in criticizing Roberts’ opinion saving Obamacare, he switched to “jiggery-pokery.”

Judicial restraint

Some Roberts critics question how he could uphold the Obamacare subsidies last Thursday and dissent on same-sex marriage on Friday.

Magarian of Washington University thinks it shows that his conservatism trumps his pragmatism. “Some people thought Chief Justice Roberts would find a way to join the majority (in the same-sex marriage case) but that was never going to happen.  He can be pragmatic, as in this week's Obamacare decision, but he's a conservative first and foremost.”

Jeffrey Rosen, president of the National Constitution Center and a long-time commentator on the court, says Roberts’ two votes were consistent.

“Both sides accused him of voting politically,” wrote Rosen. “On Thursday he was taken to task by the right, and on Friday by the left. In fact, the chief justice’s votes in both cases were entirely consistent and constitutionally principled. He embraced a bipartisan vision of judicial restraint based on the idea that the Supreme Court should generally defer to the choices of Congress and state legislatures.”

But Magarian and others point out that neither Roberts nor the other conservatives on the court have exhibited self-restraint in other decisions - such as the 2010 Citizens United decision giving corporations a right to make unlimited political contributions, the 2008 Heller decision recognizing the individual right to carry a gun or the 2013 Shelby County decision striking down a key provision of the Voting Rights Act.

The Voting Rights Act was one of the most popular pieces of legislation passed by a bipartisan consensus in Congress and the McCain-Feingold campaign reform bill, partly overturned by Citizens United, was the result of years of careful legislative craftsmanship. Yet there was little restraint among the five most conservative justices in striking them down.

Asks Magarian: “Do four justices who joined Citizens United and District of Columbia v. Heller (the decision inventing an individual Second Amendment right to keep and bear arms) really want to cloak themselves in fealty to the democratic process?”

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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