Tuesday, July 14, 2015

Describing the Supreme Court

As the Supreme Court of the United States concluded its 2014 Term in June, a perhaps surprising assessment began to emerge: The Court appeared more liberal in this last Term than it had for quite a while.



Above: Deep Dive: Monumental Decisions, The Supreme Court 2014- 2015 (The Aspen Institute)
Jeffrey Rosen, President and CEO of The National Constitution Center interviews
Sentor Chris Coons (D–DE), Alan Cooperman, Ken Davis, David Frum,
Neal Katyal, David Leonhardt, Sam Tanenhaus and Garry Wills

In Right Divided, a Disciplined Left Steered the Supreme Court, The New York Times Supreme Court Correspondent Adam Liptak notes the shift and writes,
the court’s four-member liberal wing [Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan], all appointed by Democratic presidents, managed to pick off one or more votes from the court’s five conservative justices, all appointed by Republicans. 
They did this in large part through rigorous bloc voting, making the term that concluded Monday the most liberal one since the Warren court in the late 1960s, according to two political-science measurements of court voting data.

"Liberal" and "conservative" may be terms inviting argument. But, as The Times explains in a related article, The Roberts Court’s Surprising Move Leftward,
there is relatively little disagreement about the judgments among legal scholars, and the coding conventions are both consistently applied and in line with most people’s intuitions. Some examples: Decisions favoring criminal defendants, unions and people claiming discrimination or violation of their civil rights are considered liberal. Decisions striking down economic regulations and favoring prosecutors, employers and the government are conservative.
There are at least two important responses to this idea of the Court's left-ward list, in addition to quibbling about the meaning and application of the terms "liberal" and "conservative."

First, as Neal Katyal, an attorney who appears regularly before the Court and a former Acting Solicitor General of the United States, recently argued in an interview with Jeffrey Rosen, the President and CEO of The National Constitution Center [see the video above at 23:30],
The cases that the Court took this year were pushed on the Court by a fairly radical agenda by lawyers.
Citing King v. Burwell, the Obamacare case in which Chief Justice John G. Roberts, Jr., wrote for a 6-to-3 majority to save the Affordable Care Act from a challenge to its statutory language, Mr Katyal said,
It's not the Court trending liberal as much as some extreme cases being brought by conservatives.
[On a related point, readers might consider another excellent article by Adam Liptak, With Subtle Signals, Supreme Court Justices Request the Cases They Want to Hear, about the extent to which the Court, which at an important level is passive in determining the kinds of cases it hears, is not inert, hinting in its actions at issues and cases the Court would like to consider.]

Second, Linda Greenhouse, Supreme Court Correspondent for The Times from 1978–2008 and now a Contributing Op-Ed Writer, argued last Thursday in The Illusion of a Liberal Supreme Court that the idea of the liberal Court is "fading, but not fast enough."
The “liberal Roberts court” theme retains its grip, and I worry that it may become the received wisdom about the 2014-15 term as public attention moves on from the Supreme Court. On the eve of the presidential primaries, it’s important that progressives not be lulled by a few welcome decisions into thinking that the court is in safe hands. The court that gutted the Voting Rights Act and hijacked the First Amendment as a deregulatory tool (remember Citizens United?) is, to paraphrase Donald Rumsfeld, the court we have. It’s not the court we might wish we had.
It may also be worth remembering that as the Court's 2013 Term came to an end there was much discussion of the Court's unanimity—or, as Slate's Dahlia Lithwick called it, "fauxnanimity." Two-thirds (66 percent or 48 cases) of the Court's 75 cases that year were decided unanimously. One year later, less than half (40 percent or 30 cases) of the Court's 76 cases were unanimous. Our conversation about the Court and unanimity is now replaced with the spectre of a new liberalism.

Analyzing the Court on these terms—liberal and conservative; unanimous and fractured—is an important means to understand the institution. It is also essential to understand these are not the only terms at play, that the Court can sometimes be an institution defined as much by the observer as by what is observed and that our descriptions of the Court should contain as much expectation of change and faith in fixity.