People For the American Way Foundation

A Liberal Supreme Court Term? Hardly.

In the last week, conservatives lost major cases at the Supreme Court on issues like fair housing, healthcare, nonpartisan redistricting, and marriage equality.  Some are questioning whether the Roberts Court is really all that conservative.  The New York Times’s The Upshot trumpeted The Roberts Court’s Surprising Move Leftward, writing that this term had a greater percentage of liberal decisions than any since 1969.

But this is no liberal court.  It hasn’t even been all that much of a liberal term, certainly not in the way that we saw decades ago.

Take the fair housing case, for instance: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.  There was unanimity among all 11 circuit courts that had considered the issue that a practice that has an unjustified discriminatory impact can violate the federal Fair Housing Act even when a discriminatory purpose can’t be proved.  Congress had amended the law with this type of “disparate impact” clearly in mind.  Ordinarily, under these circumstances, the Supreme Court never would have heard a case claiming that the Act does not allow for disparate impact cases.  But this is the Roberts Court, and four Justices (the minimum needed to grant certiorari) were clearly hungry to change the law.  Rather than moving the law in a progressive direction, the 5-4 result simply fought off a fringe right-wing legal attack against a long-established civil rights law.  Even so, this case was only one vote away from going in the other direction.

Similarly, King v. Burwell – the Affordable Care Act subsidies case – hardly marks new frontiers in progressive jurisprudence.  The plaintiffs’ attack against the law was laughably weak, and there was no circuit split in the lower courts to resolve.  That the Supreme Court took this case at all was both absurd and ominous.  While the Court rejected the anti-Obamacare activists’ claim 6-3, it is hard to imagine an earlier Court not ruling 9-0, or even refusing to take the case in the first place.  The majority opinion left the law exactly as it was intended and understood when it was passed.

Yesterday’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission upholding that state’s nonpartisan redistricting commission shows the same dynamic.  Arizona voters adopted this reform 15 years ago, in response to the damage done by partisanship in the drawing of district lines.  But conservative politicians sought to undo this reform and launched a constitutional attack they thought would find favor in the Roberts Court.  They lost by one vote yesterday, as a 5-4 majority upheld the status quo.

Similarly, in Williams-Yulee v. The Florida Bar, this term saw the Court entertain a conservative attack against a common-sense campaign finance law for judicial elections, one that prohibits state judicial nominees from directly soliciting campaign contributions.  Since the Roberts Court has gone out of its way to undo or undermine longstanding legal precedent supporting efforts to regulate money in politics, many thought the challenge would be successful.  However, by one vote, the Supreme Court chose to uphold the Florida law, one that applies in many other states, as well.

The Court’s four moderates are sometimes able to garner a majority to reject right wing attacks on the law.  That is a far cry from the liberal Court terms of an earlier era, when the Justices expanded the frontiers of liberty and equality, making the stirring promises of the Constitution real for millions of people.  Those were decisions that empowered Americans to vote and effect their will through fair elections, that recognized the essential dignity and liberty of the individual, and that ensured that civil rights statutes were interpreted in ways to carry out Congress’s intent.

So no, the Supreme Court did not just complete a liberal term.  Progressives breathed a sigh of relief after a number of cases this term when the Court didn’t accept invitations to lurch even further to the right.  And the Court did take one important progressive step in affirmatively ruling for marriage equality, although only by a 5-4 vote.  But there is much more work to do if we really want to see a liberal Supreme Court term.