The Roberts Court Makes Clear Leftward Shift

The Roberts Court Makes Clear Leftward Shift July 1, 2015

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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