How Will History Remember It?: Legacy of the 2012-2013 Supreme Court term
Five conservatives, four liberals: Why did the previous term seem like a win for liberals? Did the conservatives secretly come out victorious? With so many victories for liberals, can the Roberts Court still be considered a conservative court? A close look at opinions and voting patterns gives clarity to these questions.
This past Supreme Court term contained a high concentration of landmark decisions that confused, surprised, delighted, and upset many. While about half of the decisions were unanimous and relatively uncontroversial, a high fraction of the cases, about 30 percent, were 5-4 split decisions. Many believe the Roberts Court is the most activist court since the 1920s and, although the Roberts Court has a conservative majority, there were plenty of decisions that appealed to both sides of the spectrum.
During the final week of the term in June, the Roberts Court rolled out three critical decisions in three consecutive days. This review will cover these three cases with an eye to understanding this critical court term and the strategy of the Roberts Court.
Fisher v. University
The first decision to be released was Fisher v. University of Texas on June 24. The case concerned a white applicant for admission at the University of Texas, who challenged the role race played in the admissions process. The previous case at issue was Grutter v. Bollinger in which the majority held that public universities could use race as a factor to promote the diversity of the student body. When the court agreed to take Fisher, it was believed by many that the conservative majority would overturn Grutter. Thus, there was a lot of surprise when Kennedy’s majority opinion for Fisher did not overrule Grutter. Instead, the court held that public universities can take race into account as one factor, but that the standards established in Grutter must be applied with strict scrutiny. The Fisher opinion did not call into question the constitutionality of affirmative action, rather it simply asked the lower courts to re-review Texas’s admission policy with strict scrutiny.
Shelby County Alabama v. Holder
The next day, the court released its controversial Voting Rights Act decision, Shelby County Alabama v. Holder, in which it ruled a key provision of the Voting Rights Act of 1965, is unconstitutional. Section Four of the Voting Rights Act requires some parts of the country to have their voting approved from the Justice Department or a federal court before changing voting laws. This provision is considered one of the most monumental accomplishments of the Civil Rights Era. The Supreme Court decided in Shelby County that the formula in which some states were required to a pre-clearance requirement was outdated, and the conditions four decades ago when the formula was in place, are no longer the same. Instead, Congress needs to adjust the formula based on current data to see which states should be subject to pre-clearance. The future of the Voting Rights Act is tenuous and, depending on the new statute that Congress enacts, there is a concern that large portions of the population may be disenfranchised in the future.
US v. Windsor
Following two surprising decisions, the court released the US v. Windsor decision the following day, striking down the main section of the Defense of Marriage Act. The decision meant that under federal law, same-sex married couples and heterosexual couples were to be treated the same. However, in states that do not recognize same-sex marriage, the Windsor decision does not require states to change their laws. Moreover, Windsor also does not go so far as to require all states to recognize same sex marriage, or to declare a federal constitutional right to same-sex marriage.
The Supreme Court closed its term with Windsor. Although with victory after victory for liberals, the Robert’s Court last term made a perceivable shift to the right. In fact former White House lawyer, Pamela Harris, addressed this incongruence saying, “If you weren’t paying close attention, you might say, ‘What a liberal Supreme Court we have.’”
Besides these unpredictable rulings, what also made this term unusual was Kennedy’s swing vote. The importance of Kennedy’s vote can be seen in the fact that he has been the justice most frequently in the majority of 5-4 decisions in every term since 2003. It is also no surprise that Kennedy was the only justice in the majority for all three of these major decisions. Kennedy is more moderate than his conservative and liberal colleagues, but has always stood for federalism, with a libertarian view on questions of privacy. Although he is considered a conservative, he leans liberals on most social issues, especially those concerned with sexuality. However, Kennedy’s voting pattern is tricky to predict, as top Supreme Court lawyer Viet Dinh wrote, “There is no grand unified theory for Justice Kennedy’s jurisprudence.” While it is unclear what exactly he stands for, what is clear is that he is a champion for gay rights, writing the court’s most important gay rights opinions, such as Romer v Evans and Lawrence v Texas. Thus, as expected, Kennedy also authored the majority opinions for the civil rights cases Fisher and Windsor last term.
Was there a pattern or strategy for the Roberts Court in a term with so many momentous cases? The big liberal wins include the court’s hesitancy to overrule Affirmative Action in Fisher and striking down DOMA in Windsor, while the conservatives won on the Voting Rights Act in Shelby County, as well as with many pro-business decisions that tightened rules on class actions, and made it harder for employees to bring discrimination claims. The conservative majority in the Roberts Court seemed to avoid wasting political capital on sexuality and personal autonomy cases, while choosing to win decisions on race, class, and social welfare. Chief Justice Roberts lost quietly in battles which he thought were insignificant, and even more quietly won some of the most important cases. Because of this skill many Supreme Court analysts argue Roberts is a magician skillful at disguising his conservatism. Known for his eleventh hour vote switch in last year’s landmark Affordable Care Act challenge, Roberts many times votes with the liberal bloc in an opinion filled with compromises to please conservatives.
An example of this work can be seen in Fischer. In Fischer, the court sent back University of Texas’s affirmative action plan to the lower court, and asked them to look at it through a more “narrowly tailored” lens. Conservatives were pleased by the narrow scope of and reach that this lens would require, while liberals could still be happy that affirmative action programs were not ruled unconstitutional and race could remain to be a factor. The decision of Fischer was only considered such a liberal win, because legal analysts expected the court to declare affirmative action unconstitutional and the court did not go that route. Thus, in reality, Fisher was not a win for either side, but was a strategic compromise engineered by Chief Justice Roberts.
Perhaps the primary motivator behind Roberts’ cooperation and bi-partisanship is his interest in the court’s institutional capital and legitimacy. A main part of his philosophy as chief justice is for the court to have one voice, despite split opinions. He was successful in collecting their opinions and under his leadership; the court released more consecutive unanimous opinions than previous courts in recent history. Thus, in an answer to the question, was this Supreme Court term favorable to liberals or conservatives, the answer is both. Roberts strategically created provisions that would benefit conservatives in the long run in this term, just like when he placed restrictions on the commerce clause embedded in last year’s big healthcare case, considered a huge liberal win.
Pamela Harris’s words quoted above are discerning. Roberts has sacrificed some conservative wins on race, sex, and social welfare, pleasing liberals, although placing compromises throughout. Without alienating either party, he has crafted majorities in the court that break party lines. He continues to stay true to his conservatism by continuing the court’s gradual shift to the right, without overt decisions that would alienate liberals.