The Supreme Court's Past Decade Could Be Liberals' Last Gasp

The 2010s will go down in history as a contradictory period at the Supreme Court. The decade featured one liberal decision — the gay marriage case, Obergefell v. Hodges — that will be read as long as the justices’ opinions are taught in law schools. Yet the decade also saw the emergence of important new libertarian trends in First Amendment law, regarding both free speech and religious liberty, that are widely seen as conservative. And although the court shifted rightward over the last ten years, that may seem mild compared to the rightward shift we could see in the 2020s.

The marquee marriage equality decision assures Justice Anthony Kennedy, who wrote the decision for the majority and retired in 2018, a place in the judicial firmament. Kennedy had been building the constitutional case for gay rights for nearly twenty years in a series of decisions that brought together two different doctrines: the right to autonomy over crucial life decisions and the right to equal protection under the law. In the 2015 Obergefell decision, Kennedy finally fused the two different ideas together in the principle “equal dignity.”