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Official photo of U.S. Supreme Court (which was taken in 2010): Seated, from left, are Associate Justices Clarence Thomas, and Antonin Scalia, Chief Justice John Roberts, and Associate Justices Anthony M. Kennedy, and Ruth Bader Ginsburg. Standing, from left, are Associate Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., and Elena Kagan.
(AP file photo)
Can we now stop calling this a conservative court, please? It's a question that I tweeted over and over again during the last several months as the U.S. Supreme Court handed down one liberal decision after another. Last week, The New York Times finally got around to acknowledging that reality in a report headlined, "The Roberts' Court Surprising Move Leftward." Citing the Supreme Court Database, which utilizes objectively-verifiable standards, the story correctly pronounced the court's 2014-2015 term to be the most liberal in 50 years.
Portraying the Court as conservative or "right-wing," as they're fond of putting it, is a perennial Democratic campaign tactic. As just one of an endless list of examples, think back to the 2010 race for New York State Attorney General in which Democrat Eric Schneiderman faced Staten Island District Attorney Daniel Donovan. Seeking to rally abortion-rights supporters to his side, Schneiderman claimed that New Yorkers needed a staunch abortion advocate as their top attorney because the Supreme Court was "this close" - he'd generally hold his thumb and index finger an inch or so apart - to overruling Roe v.Wade.
Revealing polls
It was a flat-out lie, and he knew it. In truth, reversing that controversial decision would require, at a bare minimum, two new vacancies among the six declared abortion supporters on the court, and the appointment of two staunch conservatives to fill them. This, by of all people, President Barack Obama. And, to boot, even if Roe v. Wade were overruled at some distant time, it would have no effect on abortion rights in New York because they're protected independently by state law.
Schneiderman had no hesitancy in repeating his "this close" lie ad nauseam, however, because he knew that most people didn't have a clue about any of this. A 2012 poll conducted by Findlaw found that nearly two-thirds of Americans couldn't name a single justice on their nation's highest court. Only one in five knew that John G. Roberts, Jr. was even on the court, much less serves is its Chief Justice.
As part of a 2013 survey conducted by the Pew Research Center, people were shown photos of four of the court's judges, including Anthony Kennedy. When asked which of the four was most often the court's swing vote, only 28 percent correctly identified Kennedy, a percentage barely beyond what the law of averages would have anticipated.
Liberals stick together
So why, precisely, did the Supreme Court produce so many liberal rulings this past term?
The answer is simple. In the overwhelming majority of cases where ideology mattered, the Court's four liberal judges stuck together like petrified clones.
Moreover, an analysis by Tom Goldstein, publisher of SCOTUSblog, a prominent online site covering the Supreme Court, concluded that in the 10 cases in which ideology mattered the most, the liberals voted together every single time. This created situation after situation where they needed to attract only one vote from the remaining five justices to prevail. And they did so often enough to evoke images of Earl Warren, that pivotal fifth vote coming most of the time from Kennedy, but, on various occasions, from Roberts and even Clarence Thomas.
Here are just a few of the key cases in which the liberals parlayed their ideological intransigence into a victory for their side.
In Obergefell v. Hodges, with Kennedy on board, they short circuited the robust public debate over gay marriage, and summarily imposed it on the nation. The 14th Amendment contained a right to homosexual marriage, they concluded, even though that right went undiscovered by anybody else for 147 years before their eureka moment.
Saving Obamacare
In King v. Burwell, they snared Roberts and Kennedy to rescue the Affordable Care Act - again - this time from the plain meaning of its own language. Section 1311 of the law encourages the individual states to set up health insurance exchanges, while Section 1321 mandates the federal government to establish exchanges in those states that fail to do so. Against this background emerges Section 1401, which creates tax credits for those who buy qualifying health insurance in "exchanges established by the state under Section 1311." In order to save Obamacare from the disastrous consequences of limiting tax credits to state-created exchanges, the Supreme Court majority concluded that "established by the state" doesn't really mean "established by the state." Welcome to the Twilight Zone!
The court's liberals snared Kennedy once again to conclude in a Texas case that the Fair Housing Act prohibits not only intentional discrimination because of one's race, but also actions that, although not intended to discriminate, nonetheless have a disparate impact on minorities. A favorite tool of liberal social engineers, disparate impact theories are highly controversial because they can subject fair-minded, well-intentioned people to substantial legal liabilities for facially neutral conduct. As the dissenters pointed out, none of the language in the Fair Housing Act supports the imposition of disparate impact liability. Welcome back to the Twilight Zone.
Specialty license plates
In Walker v. Texas Division, Sons of Confederate Veterans, the liberals' unlikely ally proved to be Justice Clarence Thomas, usually a reliable conservative vote. Concluding that specialty license plates are a type of government speech, and not private speech, the court's 5-4 decision held that Texas could properly refuse to issue a Sons of Confederate Veterans plate. Illustrating the absurdity of the court's reasoning, a specialty plate proclaiming "Rather Be Fishing" must now logically be construed as an official state endorsement of fishing over working. Writing for the dissenters, Justice Samuel Alito nailed it on the head when he declared that the liberals, plus Thomas, simply didn't like the Confederate message and, hence deemed private speech to be government speech in order to uphold a ban against it.
The Supreme Court's dramatic shift leftward is an easily documented fact. Whether the public awakes from its slumber and recognizes it, however, remains very much in doubt.
[Daniel Leddy1s column appears each Tuesday on the Advance Editorial Page. His email address is column@danielleddylaw.com. Follow him on Twitter at twitter.com/LegalHotShots.]