Overton Windows

The Not-So-Liberal Roberts Court
by Linda Greenhouse, The New York Times
JULY 7, 2016

The takeaway from the term that ended last week seems to be that by the time the Supreme Court, short-handed and stumbling in the wake of Justice Antonin Scalia’s death, finally got its act together at the end of June, it had — lo and behold — turned liberal.

Count me a skeptic.

Affirmative action in university admissions survived by a margin of a single vote, and women’s access to abortion, in states trying their best to shut down abortion clinics, survived by a margin of two. Empirical political scientists code these results as liberal.

But to understand the Supreme Court under Chief Justice John G. Roberts Jr., it’s important to get beyond the binary liberal-versus-conservative label and see these and other recent cases in their full context. We have to ask what on earth the Fisher case was even doing on the court’s docket, three years after the justices had sent it back to the United States Court of Appeals for the Fifth Circuit (which had ruled for Texas) with instructions to look again and see whether the university had done enough to justify its modest use of race.

Once the conservative appeals court found for a second time that the Texas plan passed muster, that would have been the end of it for any mildly liberal Supreme Court. But the conservative justices — including, at the time, Justice Scalia — wanted to teach a lesson not only to the Fifth Circuit but also, it appears in retrospect, to Justice Anthony M. Kennedy, whom they deemed too squishy for having failed in the previous decision to slam the door completely on race-conscious admissions.

Surprise: This time, Justice Kennedy explained exactly why, in his view, the status quo on affirmative action should remain the law. Granted, he had never before embraced the precedents he cited. But the strategic miscalculation by justices impatient to undo those precedents hardly turns the Fisher outcome into the incarnation of liberalism.

Similarly, the abortion case has to be seen in context. The Fifth Circuit had upheld onerous new restrictions on abortion clinics in Texas, taking the startling position that when a state says it is regulating abortion for the purpose of protecting women’s health, no court should inquire into whether the regulation actually serves that goal. As Justice Stephen G. Breyer’s majority opinion last week made clear, that stance of complete judicial deference flies in the face of the Supreme Court’s rejection 24 years ago of “unnecessary health regulations” that impose a substantial obstacle to abortion access without conveying a health-related benefit.

Does it matter whether people are right or wrong in attaching a liberal label to the Roberts court? It’s worth trying to understand what’s driving this conversation. While liberals and conservatives may agree on little else these days, they seem to agree on this — but for very different reasons.

The rallying cry to the conservative base is: We’re in a fight to get the Supreme Court back, and in the meantime at least to keep it from tilting further to the left. The motivation on the liberal side is harder to figure. I hope I’m not unfairly detecting a note of triumphalism: We’re winning because our ideas are better.

If I’m right, I think that’s dangerous. While I agree that these particular ideas are better, that’s not why they have gained a toehold in a court that not too many years ago was being described as the most conservative Supreme Court in modern United States history. It’s because the other side has gone to such extremes — witness the abortion case with its partnership between the Texas Legislature and the Fifth Circuit. To reject a conservative extreme doesn’t make the court liberal. Rather, it puts the court — increasingly over the dissent of the chief justice, it’s worth noting — in the zone of mainstream reasonableness.

Depending on your definition of “reasonable”.


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