The Roberts Court Makes Clear Leftward Shift

The Supreme Court term that just ended this week had the highest percentage of liberal decisions since the Warren court of the 50s and 60s. The next closest? Last year’s term, which means there’s a clear leftward shift on the court over the last two years.

The Supreme Court under Chief Justice John G. Roberts Jr. has been a conservative court. But even conservative courts have liberal terms – and the term that ended Monday leaned left.

The court issued liberal decisions in 56 percent of cases this term, according to the Supreme Court Database, using a widely accepted standard developed by political scientists. The final percentage is the highest since the era of the notably liberal court of the 1950s and 1960s led by Chief Justice Earl Warren. The closest contenders are the previous term and the one that started in 2004 and ended with the announcement of Justice Sandra Day O’Connor’s retirement.

The term’s two blockbusters, on same-sex marriage and health care, were both liberal, as were an array of discrimination cases. The trend was not uniform, and the court ended its term with conservative decisions in death penalty and environmental cases.

The court’s leftward movement is modest, and it remains well to the right of where it was in the Warren court years, when the percentage of liberal decisions routinely topped 70 percent. Yet the recent numbers do seem suggestive of a shift.

And it isn’t just Kennedy joining the liberals that is doing this, it’s also Chief Justice Roberts:

But the current term has been a bit different in this way, as well. One of the other four Republican-appointed justices has joined the liberal side in about half of the 5-4 left-leaning decisions. Chief Justice Roberts has been the second most frequent justice to do so, with Justice Clarence Thomas also doing so on occasion.

As I reported a couple weeks ago, since 2012 Chief Justice Roberts has voted more often with the court’s liberals than with the conservatives.

Last term Roberts surprised many by breaking left on a few major cases. And so far this term, Roberts has voted with Stephen Breyer (90 percent), Ruth Bader Ginsburg (85 percent), and Sonia Sotomayor (83 percent) more often than he has joined Thomas (66 percent), Kennedy (74 percent), and Alito (77 percent).

The irony here is that Roberts was one of the primary young conservative legal scholars in the 1980s who were tasked with vetting conservative judges in order to ensure that they would remain conservative once on the bench, to avoid the many situations where a Republican president put someone on the Supreme Court that they thought would be conservative only to see them drift to the left (Brennan, Blackmun, O’Connor, Souter, Stevens, etc). Roberts is still a conservative, of course, he hasn’t drifted anywhere near that far yet and I don’t expect him to. But he’s clearly breaking with conservatives far more often than they ever expected him to do. Let’s hope that continues.

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What Are Your Thoughts?leave a comment
  • Doug Little

    Maybe his threshold of inane conservative bullshit has been reached.

  • Trebuchet

    Roberts, unlike his fellow cons, is no fool. He can see which way the wind is blowing and is thinking of his legacy. It wouldn’t surprise me at all if he’d have voted differently on SSM if Kennedy had voted against it. I’ve long suspected he did just that on the first ACA decision.

  • http://www.facebook.com/eo.raptor.3 eoraptor

    I truly think it is possible that Roberts will continue his minimal swing to the left. In the meantime, however, we are left to deal with the likes of Citizens United.

    Oh well…

  • http://www.thelosersleague.com theschwa

    The irony here is that Roberts was one of the primary young conservative legal scholars in the 1980s who were tasked with vetting conservative judges in order to ensure that they would remain conservative once on the bench

    Once again, one of Hussein Obama OBAMA’s sleeper agents, planted using George Soros’s time machine, strikes.

  • Chiroptera

    Maybe all the justices keep getting pushed to the left on all these rulings because Scalia is such an asshole? I know Scalia would probably sway me to the other side.

  • Glenn E Ross

    I think the difference between Roberts and the other so called conservatives is pretty simple. Roberts’ hierarchy is Corporations>Government>People. Whereas the reactionaries follow Ideology>Corporations>Government>People.

    The ACA rulings are the tell.

  • abb3w

    There’s a nice counterpoint piece to this at Mother Jones; what seems the money quote:

    Rather than liberal triumph, this court term may be better described as one of conservative overreach.

    Chief Justice Roberts only looks like a liberal because the appeals are being brought from the far imbicile parts of the right-wing, who mistakenly think that because he is a conservative he must be a fellow moron. That probably has even more depressing implications about Justice Kennedy looking like a liberal.

  • llewelly

    I would argue that by the standards of the 1990s, most of Roberts’ positions would really be quite conservative.

    But Congress as a whole has moved sharply right since then, and he’s stayed. His rulings seem relatively left only because Congress is making extremely conservative laws.

  • Azkyroth, B*Cos[F(u)]==Y

    Are you sure it’s not just the Overton window?

  • R Johnston

    The court didn’t move left this term; rather, the caseload moved far loony right. The same sex marriage case wasn’t a move at all on the issues of the case. The arguments against the ACA subsidies were ridiculous, legally incoherent gibberish incompatible with any precedent and with the rule of law, the kind of thing that would get you an F in any reputable law school class. The cases that came down 5-4 or 6-3 on the “liberal” side were generally, like the ACA case, cases where the “conservative” side of the case was something straight out of an Alex Jones broadcast.

  • Michael Heath

    I’m with R Johnston @ 10.

    Conservative-friendly opinions have become embarrassing. They’re painful reading.

  • jonathangray
  • moarscienceplz

    Oh, so someone who disagrees with Clarence Thomas is not a true Conservative? Really? So when a black man says that slavery can’t take your dignity away, and you don’t fully agree with that, you must be a Liberal? Really? If an African woman is stripped naked and put on an auction block to be sold like an animal and then raped with no chance of punishment for her rapist, because he OWNS her, that can’t be a stripping away of dignity? And someone who objects to that concept must be a bleeding heart liberal?

    I would hope there is still some room in the Conservative tent for people who have some tiny shred of compassion for fellow human beings, but maybe I am wrong about that. Maybe compassion and Conservatism are utterly incompatible. If so, good to know! Let those of us who are still human proclaim that from the rooftops!

  • D. C. Sessions

    Roberts, unlike his fellow cons, is no fool. He can see which way the wind is blowing and is thinking of his legacy.

    Roberts, no fool, knows what a legacy is worth: it, plus five bucks, will not even get you a coffee at Mickey D’s because the dead can’t buy coffee.

    On the other hand, power is very real and sweet for as long as you live. Being a partisan hack may make historians after you’re dead say unkind things about you, but so what? Apre moi, le deluge and all that. Especially if you’re in position to make sure that your team holds onto power for the rest of your life and is suitably appreciative.

    Being a stupid partisan hack (*hack* Scalia *hack) on the other hand can cut into your power base and even damage your party by drawing attention to the hackish nature of your institution. So don’t waste it on irrelevancies like SSM (where your team has already lost and is headed towards losing big) and save it for making sure that elections are appropriately stacked and the paymasters aren’t inconvenienced.

  • pacal

    moarscienceplz says No. 13

    Oh, so someone who disagrees with Clarence Thomas is not a true Conservative? Really? So when a black man says that slavery can’t take your dignity away, and you don’t fully agree with that, you must be a Liberal? Really? If an African woman is stripped naked and put on an auction block to be sold like an animal and then raped with no chance of punishment for her rapist, because he OWNS her, that can’t be a stripping away of dignity? And someone who objects to that concept must be a bleeding heart liberal?

    Clarence Thomas has been an embarrassment to the court in many respects. All his prattle about “dignity” and not being able to take it away is designed to allow legislation and practices that screw people. The rational being since it doesn’t take away your “dignity”, (T appears that virtually nothing in this view can taker away your dignity.), then all sorts of demeaning and insulting treatment is allowed because it doesn’t take away your “dignity”. Thus bigots etc., can demean and insult you, the law can screw you but since that doesn’t take away your “dignity” it is allowed!?

    Clarence Thomas can fuck off.

  • sabrekgb

    What the hell does “leftward” shift even mean…? “Liberal” how?

    Can we please stop playing into these 1 dimensional political spectrums that don’t actually describe anything and contribute to stupefying over-simplification of politics/issues?

    Come on, guys…can’t I at least get 2 dimensions? 3, if you’re feeling generous. But, fuck…Left/Right…”Liberal”/”Conservative”…it’s a goddamn semantic null.

  • Artor

    It appears that virtually nothing in this view can take away your dignity.

    Sure there is. Handouts like Welfare and Medicare and SSM are completely degrading to your dignity, and you must be protected from that harm.

  • llewelly

    “Can we please stop playing into these 1 dimensional political spectrums …”

    In most US elections, there are basically 2 realistic candidates, and it’s a first-past-the-post system.

    Now between two points you can draw a line. A one dimensional line.

    Now combine that with the fact that most voters vote primarily based on either party recognition, or name recognition.

    That means that whatever the dominant dimension is, all the other dimensions will be warped to be as strongly correlated to – or as parallel to it – as feasible.

    That’s why, in US politics at least, all these multi-dimensional schemes for describing people’s politics, which have been popping up since at least the mid 1990s, keep crashing and burning.

    They always end up with a couple of dimensions which are so strongly correlated that it’s meaningless.

    Now, for the tiny minority of us who write emails to politicians (who usually ignore them), and who sign petitions, and go to protests, and so on – multi dimensional could matter – but we are very much the minority, so there’s little incentive.

    If there was enough incentive – someone would have to begin with some kind of analysis to find dimensions that were not correlated. That can’t be achieved by a facile ass pull, like choosing “libertarian – authoritarian” for one axis and “conservative – liberal” for another axis.

    In any case – if I am understanding the web site of organization that did the study, this is the definitions of liberal and conservative they use.

  • Crudely Wrott, lurching towards recrudescence

    It’s been said before that reality has a liberal bias and it deserves to be said again:

    Reality has a liberal bias.

    A major influencing factor is this: it is easier to be nice to others than it is to be be mean and nasty to others.

    In the same fashion that it is easier (not accounting for personal embarrassment and revealing one’s hole card) than it is to be dishonest. All those lies begin to be hard to remember and the covering of one’s ass begins to wear thin after so many iterations and excuses.

    The real world, the one that is foreign to those who covet wealth and power, favors honesty and kindness over personal gain at the expense of others.

    Cooperation and mutual support trumps covetousness and acquisitiveness every time in the long run. Face it, folks and all republican hate spewing wannabes, the long run is the path that all of us are on.

    My dog, just think of the grandchildren who will inherit the world that we throw them!

    History will be less than kind to the many who labor against reality today in order to live high and fat at the expense of the average person. Oh, the embarrassment! Oh, the cost!

    Pity that they will die before the true cost of their stinginess and ignorance is fully revealed.

  • http://motherwell.livejournal.com/ Raging Bee

    Come on, guys…can’t I at least get 2 dimensions? 3, if you’re feeling generous. But, fuck…

    I’ve seen 2D political maps, but they were all created by libertarians, and they were blatantly self-serving, dishonest, and totally at odds with observable political reality. The 1D scale is simplistic, but the 2D scales I’ve seen are deliberately misleading, and therefore less useful than the standard 1D scale we’ve known for lo long already. If you have a better 2D scale than the crap I’ve seen so far, I’m all ears…

  • sabrekgb

    I’ll dig one up. In the meantime, go respond to the chuck norris thread.

  • abb3w

    @20, Raging Bee

    If you have a better 2D scale than the crap I’ve seen so far, I’m all ears…

    I do recall seeing a couple technical pieces in political journals that indicated some; contrariwise, the focus of the one I best recall was indicating that several factors like those llewelly noted leave the 2-dimensions most relevant to how the political parties shift over time. Nohow, I didn’t bookmark the articles.

  • daved

    @20 — does that include the Pournelle chart?

  • jonathangray