Here are some stats from the just-finished Supreme Court term that shows that President Obama continues to be out of step with liberal values on criminal justice and civil liberties issues. Especially on criminal justice issues, his position aligns with the conservatives more often than the liberals.
While the executive branch historically wins 60 to70 percent of its cases in the high court, this year the administration won only 38 percent. The court ruled against the administration in 13 of the 21 cases in which the federal government was a party, including Monday’s important decision curtailing the Environmental Protection Agency’s authority to regulate pollution from power plants.
The administration’s low win rate might seem to be the inevitable result of ideological disagreements between a liberal president and a conservative court. Yet the data suggest a more surprising story: The liberal justices voted against the Obama administration more often than the conservatives did.
The two justices who cast the most votes against the administration this term were Justices Ruth Bader Ginsburg and Stephen Breyer, each opposing the administration in 71 percent of the cases. Justice Sonia Sotomayor isn’t far behind, voting against the administration 67 percent of the time. Who voted the most with the administration? Justices Clarence Thomas and Anthony Kennedy, who each sided with the administration more often than not (in 52 percent of the cases)…
The court rejected the administration’s argument that fishermen can be prosecuted under the Sarbanes-Oxley Act for destroying illegal catch; that people can be prosecuted for criminal threats on Facebook without proof of intent; that police can extend a traffic stop to bring in drug-sniffing dogs; that convicts can’t sell their firearms; that prosecutors don’t have to prove a defendant knew he had a controlled substance analogue; and that a provision of the Armed Career Criminal Act wasn’t unconstitutionally vague.
Add in the Supreme Court’s expansion of whistleblower protections and its refusal to allow the Board of Immigration Appeals to deport someone for unspecified drugs—both contrary to the administration’s arguments—and you have a remarkable number of cases this term promoting more liberal, less law-and-order outcomes than sought by the administration…
If the administration had taken less conservative positions on criminal justice cases, the president would likely have had a much better win rate overall.
I have long bashed Obama about his appalling positions on most civil liberties issues, especially on criminal justice matters. Even in cases that don’t involve the federal government at all, he can usually be counted on to file a brief taking the most right-wing, pro-police position on it, from drug-sniffing dogs to putting GPS units on someone’s car without a warrant to absolute prosecutorial immunity and many other cases. Together with his clearly unconstitutional positions on data mining, State Secrets Privilege, whistleblowers, this is why I would never support him if, as is being suggested now, he were nominated for the Supreme Court after he leaves the White House.