Has the Court Turned Left?

Roberts and Kennedy.jpg

Charles Dharapak/Pool/Cnp/ZUMA Press/Corbis

Chief Justice John Roberts and Justice Anthony Kennedy at President Obama’s State of the Union address, Washington, D.C., February 12, 2013

For the first time since John Roberts became chief justice in 2005, the liberals on the Supreme Court have won more closely divided cases than they have lost. In the Court term that ended today, the five conservative justices—John Roberts, Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito—were in the majority in only five 5-4 decisions. By contrast, the four liberal justices—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—were in the majority ten times, or twice as often. In all but two of those cases they were joined by Justice Kennedy.

Most dramatically, of course, in back-to-back decisions last week, the Court dismissed another legal challenge to Obama’s health care reform law, and declared that same-sex couples have a constitutional right to marry. But in other important cases as well, liberals prevailed. The Court found that the Fair Housing Act prohibits housing policies that adversely affect racial minorities, even when there is no discriminatory intent; ruled for the Alabama Black Caucus in a challenge to racial gerrymandering; upheld Arizona’s independent redistricting commission, designed to limit partisan districting; protected speech rights on the Internet; sustained campaign finance restrictions in judicial elections; and eased the standard for victims of excessive force in the nation’s jails. And in cases that did not even present these issues, Justice Kennedy wrote an impassioned separate opinion denouncing prolonged solitary confinement, and Justice Breyer wrote a forty-page dissent laying out a powerful case against the death penalty. Both opinions invited future constitutional challenges.

The conservatives did win several notable cases. Among them, they rejected a challenge to Oklahoma’s lethal injection execution regime, and ruled that the Environmental Protection Agency has to take costs into account in assessing whether to regulate power plant emissions. But these decisions do not come close to the term’s liberal outcomes in their significance.

Does all this, then, amount to a shift to the left by the Roberts Court? Over the past decade, Justice Kennedy sided with his conservative colleagues in 5-4 decisions 64 percent of the time, ranging from a high of 73 percent to a low of 50 percent, according to SCOTUSBlog. But this year, that pattern was reversed, with Kennedy siding with the liberals more than 60 percent of the time.

The Fair Housing Act decision was the term’s biggest surprise. The conservatives on the Court, and Justice Kennedy in particular, have long been skeptical of legal claims based on a practice’s adverse effects on a racial minority—a concept known as “disparate impact”—when there is no evidence of intent to discriminate. In part, this skepticism is based on a concern that upholding such claims will lead to race-conscious policies as a way to avoid future legal challenges. The Court had twice before agreed to review other cases asking whether the federal housing law allows practices that have unintended disproportionate consequences for minorities, and both times the plaintiffs settled the cases to avoid what they feared would be a Supreme Court defeat.

This time, the plaintiffs did not settle, but to everyone’s surprise, the Court affirmed the “disparate impact” theory. In retrospect, it should not have been so shocking. All eleven federal courts of appeals that have addressed the question came to the same conclusion, and Congress had amended the federal housing law in 1988 in ways that presumed that it covered claims based on the “disparate impact” principle. Still, the decision was 5-4, with Justice Kennedy joining the liberal justices.

Part of the reason this year’s results seem so remarkable is that the conservatism of the Roberts Court has often been exaggerated. Even in past years when the conservatives have seemed to dominate, Justice Kennedy has been much less doctrinaire than his four conservative colleagues. Thus, while many litigants last term invited the Court to issue radical rulings overturning liberal precedents, the Court nearly always resolved the cases more narrowly, declining the invitations to remake Court doctrine.

It is also possible that the Court has proved less conservative than many feared because the country is less conservative. Of course, the justices don’t need to run for reelection and don’t follow the election returns in any simplistic way, but studies have shown that Court decisions rarely deviate too sharply from public opinion. If the Court is too out of step with the public, it risks undermining its legitimacy. This may help explain the results in the two most important decisions of the term: King v. Burwell, on Obamacare; and Obergefell v. Hodges, the same-sex marriage decision.

In Burwell, Justices Roberts and Kennedy joined the four liberals to reject an argument that four words in an obscure sub-provision of the nine-hundred-page Affordable Care Act (ACA) disentitled several million poor and middle-income Americans to tax credits designed to help pay for their health insurance. As I argued in these pages when the Court took up the case, the challengers’ theory, while plausible when the clause they rely on is read in isolation, falls apart when the clause is read in the context of the statute as a whole.


The provision in question pegs tax credits to the number of months a taxpayer had health insurance purchased on an “exchange,” or insurance marketplace, “established by the State.” The ACA contemplated an exchange in each state, but gave states the option to establish one themselves, or have the federal government establish one for them. Thirty-four states chose the latter course. The challengers argued that since those states did not have an exchange “established by the State,” their citizens were ineligible for tax credits. As Justice Scalia put it in dissent, “Words no longer have meaning if an Exchange that is not established by a state is ‘established by the State.’”

But writing for the majority, Chief Justice Roberts maintained that it was not so simple. To accept the challengers’ restrictive interpretation would produce absurd results. Federal exchanges, for example, would have no customers at all, because the statute defines an exchange’s customers as persons residing in “the State that established the Exchange.” Most importantly, the challengers’ interpretation would destroy the insurance markets in all thirty-four states now served by federal exchanges. The chief justice cited an Urban Institute study that found that disallowing credits in the thirty-four states would cause more than eight million people to lose insurance and increase premiums for everyone else by 35 percent. This would very likely lead to a “death spiral” in the insurance market, as fewer and fewer people could afford insurance, shrinking the risk pool and requiring higher rates, which would in turn shrink the risk pool further and require still higher rates, until the market collapsed.

As Justice Roberts concluded, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” If the Republicans really want to take away benefits from millions of Americans, they are free to attempt to do so through Congress; the Court will not do it for them.

In the marriage equality case, gay rights advocates had two critical elements on their side: history and Justice Kennedy. Only two decades ago, the idea that two men or two women could marry each other was unthinkable to most, anathema to many. But gay rights advocates committed to this vision had changed the course of history, arguing for domestic partnerships and then marriage in state legislatures, state courts, corporate boardrooms, and town councils. If Ireland and Mexico, both of which are about 85 percent Catholic, can recognize same-sex marriage, how can the United States not do so? According to the Pew Research Center, 57 percent of all Americans, and 73 percent of those born after 1980, favor recognition of gay marriage.

Marriage equality proponents could also be pretty confident about Justice Kennedy. He has written every positive gay rights decision the Supreme Court has ever issued. His streak goes back to Romer v. Evans, a 1996 case that overturned a Colorado ballot referendum that precluded state and local antidiscrimination ordinances from protecting gays and lesbians. It continued in Lawrence v. Texas, a 2003 decision that struck down a Texas law making homosexual sodomy a crime. And in 2013, Justice Kennedy wrote for the majority in United States v. Windsor, invalidating a Defense of Marriage Act provision that denied all federal marriage benefits to same-sex married couples.

Justice Kennedy’s reasoning was straightforward. The Court has long protected the right to marry as an aspect of “liberty” under the due process clause, ruling that states could not deny the right to couples of different races, to prisoners, or to deadbeat dads who had failed to make their child custody payments. The question presented in Obergefell was whether states were justified in excluding gays and lesbians from that institution. To answer it, Justice Kennedy asked why the Court has protected the right to marry. He identified four reasons for doing so—freedom to choose with whom to share one’s life is a fundamental aspect of individual autonomy; marriage furthers the right to intimate association; marriage safeguards children; and marriage is a “keystone of the Nation’s social order” and therefore is supported through a wide array of official benefits. These principles, Justice Kennedy reasoned, apply equally to same-sex and opposite-sex couples, and therefore the right to marry must be extended to both.

The four dissenting justices accused the majority of substituting its views for those of the political process. Justice Scalia, the most vituperative (and the most in need of an editor), decried the majority opinion as “pretentious,” “egotistic,” and filled with “hubris” and the “mystical aphorisms of the fortune cookie.” “Today’s decree,” he warned, “says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” Justice Thomas went further, arguing not only that the majority was wrong, but that all prior decisions protecting such liberties as education, sexual intimacy, marriage, contraception, and abortion were wrong, because the Framers intended “liberty” to protect solely freedom from physical detention. And Roberts insisted that if you like the outcome, you should feel free to celebrate: “But do not celebrate the Constitution. It had nothing to do with it.”


Despite the chief justice’s protestation, the Constitution has everything to do with the majority’s decision. Absent the Constitution, the Court would have no power to recognize a right to marry. The Framers used open-ended terms such as “liberty,” “due process,” and “equal protection” because they understood the need for evolution if the Constitution was to withstand the test of time. And the Framers gave the Court the obligation and authority to define and enforce these principles. As any good judge must, Justice Kennedy generalized from the Court’s precedents, identified their core principles, and justified his result by reference to the underlying values of prior decisions on rights of personal liberty, marriage, and equal protection.

We cannot know whether the Court’s liberal turn this term is an anomaly or an unconscious attempt to mirror more closely the nation’s deepest commitments, rather than the justices’ own conservative instincts. But two things are certain. The term’s two most high-profile decisions would have been far more radical had they come out the other way. And what will truly determine whether we get a conservative or liberal Court in the future is who wins the next presidential election and fills the Court’s next vacancies. Now more than ever, everything hangs in that balance.

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