Republican appointees are in the majority on the U.S. Supreme Court, but the term is shaping up as the biggest liberal rout in decades.
Blockbuster rulings backing Obamacare and gay marriage punctuated a session marked by extraordinary unity among the four Democratic appointees and new proof that the court’s conservative wing isn’t always so conservative.
The Democratic appointees also prevailed -- with the help of at least one swing vote -- in divisive fights involving pregnant workers, the status of Jerusalem, Confederate-flag license plates and funding judicial campaigns. The court even defied expectations Thursday and retained an important category of lawsuits under the Fair Housing Act. The justices will release the final three rulings of their nine-month term Monday.
“We can safely say this is the most liberal term of the Roberts court, and probably of the past quarter-century,” said Tom Goldstein, an appellate lawyer and founder of the website Scotusblog. “The left held a majority in most of the close cases, including easily the most important ones.”
A key reason: Even though Republican-appointed justices hold a 5-4 edge, the four Democratic appointees stuck together on an overwhelming number of cases. Each has agreed with the other three, at least in part, in 90 percent or more of the court’s rulings, according to Scotusblog.
That unity meant it took just one vote from the other side to capture most of the ideologically divisive cases, resulting in a term that almost let liberals forget how often the court led by Chief Justice John Roberts has drawn their ire over the past decade.
The term might adopt a slightly different hue when the court releases its final rulings. Cases involving lethal injection, clean-air rules and redistricting all offer the prospect of conservative triumphs.
Still, the scorecard has been lopsided in favor of the liberal wing. According to statistics kept by Scotusblog, the non-unanimous cases this term have left Antonin Scalia and Clarence Thomas, two of the most conservative Republican-appointed justices, disproportionately in dissent. Scalia was in the majority in 48 percent of those cases and Thomas in only 33 percent.
By contrast, the court’s four Democratic appointees -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- all were in the majority in at least 78 percent of those cases, as was Justice Anthony Kennedy.
Those numbers may actually understate the phenomenon because of the significance of some of the rulings. Kennedy provided the fifth vote to legalize gay marriage nationwide only a day after he and Roberts joined with the liberal wing to uphold the tax subsidies that are a core component of President Barack Obama’s landmark health-care law.
“It’s difficult not to feel fairly gleeful about this term after two consecutive days of sweeping wins in hugely important cases,” said Elizabeth Wydra, chief counsel at the progressive Constitutional Accountability Center.
Roberts’s vote in the Obamacare case drew a torrent of criticism from people who had backed his 2005 nomination to the court by President George W. Bush. It was the second time the chief justice had backed the health-care law, following the 2012 ruling that rejected a broad constitutional challenge to the historic measure.
Once hailed by conservatives for leading the court in striking down campaign-finance laws and rolling back the Voting Rights Act, Roberts is today the focal point for their anger.
He “is now dead to conservatives,” said Curt Levey, the president of the Committee for Justice and a former supporter of Roberts.
The chief justice also aligned with the Democratic appointees in a 5-4 ruling that said states can bar judicial candidates from personally soliciting campaign funds.
More often, it was Kennedy providing the swing vote, as he did in the gay-marriage and housing-bias cases. The latter ruling said that people suing under the Fair Housing Act don’t have to show intentional discrimination. Instead, Kennedy said they can use statistical evidence to show that a disputed practice has “disparate impact” on racial minorities.
“Much progress remains to be made in our nation’s continuing struggle against racial isolation,” Kennedy wrote.
Kennedy also joined the liberals in another race case, reviving a lawsuit by Democrats and black lawmakers who said a Republican-drawn Alabama legislative map unconstitutionally packed too many racial minorities into a handful of districts.
The same group of five invalidated a Los Angeles ordinance that let police demand access to hotel registries.
In another case, it was Thomas who broke with his usual allies and joined a 5-4 majority to say that Texas didn’t have to issue a license plate depicting the Confederate battle flag.
Thomas and Kennedy both aligned with the liberals in a 6-3 decision to side with the Obama administration and strengthen presidential power. That ruling struck down a law that would have let Americans born in Jerusalem designate Israel on their passport as their place of birth.
The administration said the law undermined the State Department’s longstanding policy of neutrality toward Jerusalem’s status.
And Roberts and Justice Samuel Alito, another Republican appointee, were in the majority when the court voted 6-3 to bolster the rights of pregnant women and revive a lawsuit by a former United Parcel Service Inc. driver.
The conservative wing did stick together to win a handful of 5-4 rulings, including a decision that said the federal government was unconstitutionally forcing raisin growers to set aside part of their crop during high-production years. Ginsburg, Breyer, Sotomayor and Kagan all dissented at least in part.
More often, the conservatives fractured while the liberals stayed united.
“These victories,” Wydra said, “are perhaps even sweeter when you think that we are achieving them in a court with a conservative majority.”