Last week was a productive one for President Obama. His approval ratings are up, he passed a major piece of legislation, he gave a historic eulogy at Charleston's Emanuel AME church, and the Supreme Court handed down two rulings that will leave lasting positive marks on his legacy.
And it seems that liberals in general are feeling pretty good about things too. While the horrifying events of Charleston threw everyone for a loop, the long overdue realization that it was time to put the Confederate Flag into the history books was a welcome reaction. And while the passage of the fast-track legislation over the objections of the progressive base was depressing, the left put up a good fight that showed a path to winning future battles. Two big, highly anticipated Supreme Court decisions were met a huge sigh of relief, in the Obamacare case, and buoyant euphoria, in recognition of the right for gays and lesbians to marry. Sometimes it's good to be a liberal.
Unfortunately, it was not all good Supreme Court news. The conservative majority also handed down a shockingly cruel decision on the death penalty (authored by Samuel Alito) which basically said that the death penalty is constitutional and that means that any way a state wants to carry it out is also constitutional. The lurid possibilities are limitless apparently. But this wasn't enough to dampen liberal moods. The good news was so overwhelming that this one slipped through without a whole lot of discussion. (And the sad truth is that the cruelty of the death penalty probably just isn't an issue that animates the average person.)
As one might imagine, the conservatives are up in arms. Even a death penalty affirmation and Justice Scalia's inane ranting about applesauce wasn't enough to soothe them. According to CNN's post-decision polling, the right is very upset with this "lefty" court. That's right. They believe this court is way too liberal. Here's how it breaks down by party:
Republicans are most apt in the new poll to say the Court's ideology is too far to the left: 69% see the Court as too liberal. That's up from 2012, when 59% of Republicans called it too liberal.
Nearly 70 percent of Republicans see this court as too liberal. And this can be attributed to the chief justice's unwillingness to strike down a law that allows people to buy affordable health care and Justice Kennedy's belief that marriage is so great that everyone ought to be able to do it. That used to be called "compassionate conservatism" and "family values," but those seems to be out of fashion.
Still, it's not all that surprising that Republicans would think the court is too liberal. They have been indoctrinated in that idea for half a century and for many it's just a reflexive belief devoid of any substance. "Unelected judges!" is right up there with "tort reform" for mindless right-wing rallying cries. (And as I've written here before, their judicial philosophy is anything but consistent.) But what in the world is going on with the Democrats?
Among Democrats, 34% now say they see the Court as too conservative and 15% too liberal, 49% say the Court is about right. In 2012, just 6% of Democrats described the Court as too liberal, but the share calling it too conservative was about the same at 35%.
I could understand why Democrats would have warm feelings toward John Roberts and Anthony Kennedy after last week. They both not only voted the right way, at least on Obamacare, they also wrote opinions last week in ways that are very satisfying and carry some legal heft going into the future. But half of Democrats thought the court was just right even before those opinions. How can this be? This is the court that has brought us Hobby Lobby and Citizens United and tore the guts out of the Voting Rights Act.
Adam Serwer at MSNBC explained there's an even bigger problem:
Despite all the rhetoric about judicial activism, past administrations have won up to 70% of Supreme Court cases, a percentage that has plummeted to about 37% during the Obama administration. Coverage of the high court’s controversial 5-4 rulings were overshadowed by the historic nature of the court’s rulings on same-sex marriage. According to a survey by the Pew Research Center, only 34 percent of Americans knew that the Supreme Court’s ruling invalidating a key part of the Voting Rights Act.
Serwer notes that it's obvious who is truly winning before the Court when you look at who is getting cases accepted and winning them most of the time. The big winners are the Chamber of Commerce and the Cato Institute. The COC won 14 out of 17 and Cato won 15 out of 18. And while libertarians may preen that they are making headway in changing the legal landscape, the Court, like the GOP generally, doesn't seem to be all that interested in their ideas when it comes to criminal justice or national security. The real victor, of course, in all these cases is corporate America. Indeed, that's one area in which the conservative majority seems to be in perfect accord.
But that does raise the question as to why so many people, conservatives and liberals alike, seem to think the court is moving to the left when it is actually moving inexorably to the right. Some of this is attributed to the talents of Justice Roberts who has a reputation for taking the long view. From which opinions he joins, to who is assigned to write them, to the land mines he lays in his own opinions, he does seem to be a man with a plan.
But there may be even more to it than that. Brendan Nyhan at The Upshot references a 2009 article by political scientists Kevin T. McGuire, Georg Vanberg, Charles E. Smith Jr. and Gregory A. Caldeira in which they theorized that conservatives, knowing that they had finally achieved their goal of a Supreme Court majority, would appeal more cases while liberals would do the opposite. This calculation has the perverse effect of increasing the number of conservative reversals of lower-court rulings while affirming more liberal decisions simply because nobody bats a thousand. Nyhan wrote:
Their prediction seems to fit nicely with recent evidence. The court has reversed lower-court decisions and decided in favor of conservatives on high-profile cases concerning issues like campaign finance and voting rights. But Justice Kennedy and/or Chief Justice Roberts have joined the liberal wing to affirm more liberal lower-court rulings in cases like today’s decisions on health care and housing. Here, for instance, is how Eric Citron, a former Supreme Court clerk, characterized the housing ruling on SCOTUSblog this morning:
"This [decision] is a good example of what’s problematic with the proposition that this is a 'liberal' term. On the one hand, this is a huge victory for the left wing of the Court on a contentious issue; on the other hand, this issue does not get granted with a less conservative Court. It all depends on your baseline."
By this argument, the court’s recent decisions may reflect a change in the cases being considered by the court rather than a shift in the preferences of the justices.
Finally, in a thoroughly fascinating (and highly recommended) piece in Think Progress, Ian Millhiser suggests that some of this can also be attributed to Justice Roberts deciding he's just about had enough of the right wing legal/intellectual "jiggery-poker" that empowered some hackish lawyers and hackish lower court judges to allow cases as absurd as King vs Burwell to even see the light of day. Apparently, in the last few years the conservative legal community has become infiltrated by the same reckless radicalism we've seen in the political system. The Chief Justice has a lot more power than and more stable majority than the political leaders do, and he can play a much longer game. But he's responding to the same pressures. The fact that Roberts is pushing against this radicalism doesn't make him any more of a liberal than John Boehner trying to wrangle his unruly Tea Partyers makes him a progressive. They are both conservatives trying to achieve their goals without burning the whole place down in the process.
It would be a big mistake to place too much hope in the idea that this dynamic will result in liberal outcomes. Once in a while, for any number of unpredictable reasons, it will go their way. But the rest of the time the conservatives are going to be winning just as they have been. Fifty percent of Democrats should not be so complacent that they tell pollsters that's "about right." They couldn't be more wrong.