Around this time last year, Supreme Court commentators were heralding what appeared to be the beginnings of a new liberal era on the Court. Among the supposed signs were decisions that saved the Affordable Care Act (once again) from a manufactured Republican challenge, and another that legalized same-sex marriage across the country. In response, we helped to curate an entire issue of The Nation magazine refuting that generalization.
Flash forward to this past week and reading the headlines was déjà vu. “[F]or the second year in a row,” David Savage of the L.A. Times proclaimed, “the court tilted to the left in its major decisions.” At The New York Times, a graphic displayed several conservative justices—including Justice Alito!—drifting to the ideological left. Another Times article observed that, “for the second term in a row,” the Roberts Court “delivered liberal decisions at a rate not seen since the famously liberal court led by Chief Justice Earl Warren.”
But as we said when the term began, claims of a left-leaning Court “depend on a generous grading curve that discounts the Court’s relentless rightward progression.” That remains the case now, even if the death of Justice Scalia means that the conservative wing of the Court has one less reliable vote.
Take the Court’s ruling on affirmative action in Fisher v. University of Texas at Austin. Fisher merely preserved, and did not advance, long-established tools used by universities to promote racial and ethnic diversity in higher education, much like last year’s decision in Texas Department of Housing v. Inclusive Communities preserved a long-established tool to combat racial discrimination in housing under the Fair Housing Act. Indeed, the fact that the Court even heard these cases, both premised upon right-wing challenges to longstanding precedent and well-established principles, reflects how deeply conservative the institution has become.
Whole Woman’s Health v. Hellerstedt, the Court’s 5-3 ruling protecting abortion access, similarly preserves a constitutional right that conservatives, through restrictive state legislation, have tried to render meaningless. While the decision may have breathed new life into decades-old precedent upholding a woman’s right to have an abortion, it will still take many more court battles to tear down the mountain of abortion restrictions passed by right-wing lawmakers over the past several years—lawmakers that were emboldened by a conservative Court that had actively ruled against abortion access many times.
The bottom line is that the vast majority of progressive “victories” this term, just like last term, have been on defense, not offense. This means that a win for the liberal wing of the Court required batting back ring-wing attacks on progressive issues—attacks that would not have been before the Court but for the votes of the conservative justices to grant cert in those cases.
Examples abounded this term, to wit: Evenwel v. Abbott, an attempt by a secretly funded right-wing group to undo the one-person-one-vote principle in order to suppress minority voting; Zubik v. Burwell, a conservative attempt to expand the Religious Freedom Restoration Act and restrict women’s access to contraception; and Campbell-Ewald v. Gomez, an attempt by business interests to defeat consumers’ ability to band together in class action suits. In these three cases, the side advancing a conservative agenda lost their challenges in the lower courts, 1 but then won the votes of at least four justices to revive their claims in the Supreme Court.
But perhaps the most obnoxious example of this right-wing agenda played out this term in Friedrichs v. California Teachers Association, the union fees case. At issue was a 40-year-old precedent that allows to states to require non-union members to pay agency fees that support the union collective bargaining activities from which they benefit. Overturning this precedent would have been a major setback for unions and the labor movement, both top priorities on arch-conservatives’ to-do list. Only the Supreme Court has the power to overturn this precedent, and the Court’s conservative wing, led by Justice Alito, had been signaling for years that it was willing to overturn it if “the right case” came along. So right-wing activists worked diligently to have Justice Alito make good on his promise: they conjured up a case to directly challenge the precedent and asked the lower courts to quickly rule against them so that they could bring the case before the Supreme Court.
Sure enough, the Court granted cert in the case on the last day of the term last year. Everything was going smoothly: after oral arguments in January, there were strong indications that the conservative bloc of the Court would stick together and provide the five votes needed to rule against the unions.
And then Justice Scalia died. The Court deadlocked 4-4, which meant the unions were saved and the liberal justices could file away their dissents for another day. But make no mistake: this was no win. The law on this issue had long been settled and there was no reason for the Court to weigh in at all. And because the Court tied without issuing a precedent-setting decision, similar challenges to worker rights continue to move through the lower courts.
Yet there is still another reason why this Court is quite obviously not “liberal,” and why comparisons to the Warren Court are unhelpful. Amidst the favorable rulings in the abortion and affirmative action cases came Utah v. Strieff, a decision that moved protections under the Fourth Amendment—a hallmark of the Warren Court—decidedly backward. The question was whether the police can detain a person without any suspicion of wrongdoing, run a warrant check on that person, and then conduct a search if an arrest warrant shows up. A majority of the justices, including Justice Breyer, said yes, thus creating an incentive for police to stop anyone on the street, betting that they’ll find a warrant that will justify the encounter after the fact. In so ruling, the Court ignored the stark reality that the people most likely to be on the losing end of that bet will be the poor, the disadvantaged, and people of color.
But that reality did not escape Justice Sotomayor, who has emerged as the liberal lion of the Court on issues of race and criminal justice. “Writing only for myself, and drawing on my professional experience,” Justice Sotomayor proceeded to excoriate the Court in dissent for turning a blind-eye to the suffocating conditions it had created with respect to police encounters with minorities:
This Court has given officers an array of instruments to probe and examine you. . . . The white defendant in this case shows that anyone’s dignity can be violated in this manner. But it is no secret that people of color are disproportionate victims of this type of scrutiny. . . . We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.
Perhaps when such perspective is offered in a majority opinion and not a dissent, we can agree that the Court has turned a corner.
1. Zubik v. Burwell was the lead case in a group of seven consolidated cases that the Court accepted for oral argument in the spring. In all seven of these cases, the conservative groups challenging the contraception mandate lost in the courts of appeals. Only one court of appeals, the Eighth Circuit, ruled in favor of the challengers, but that ruling was not appealed to the Supreme Court until after the Court had already granted cert to the seven cases and thus was not a part of the oral arguments in those cases.↩