The Supreme Court's Liberal Tack, in Perspective

[Torie]

Sean Trende gives an historical tour de horizon of SCOTUS jurisprudence (yes, he's not only statistician, he's also a lawyer ), and sees the current decisions as merely putting a brake on its "rightward" drift over the decades.

[politicallefty]

I don't think anyone's disputing the fact that the Roberts Court is a conservative Court, to the right of the Rehnquist Court and the most conservative Court in many decades. The left has won more than its fair share of prominent cases of the past couple year (particularly this year, which was undoubtedly one of the most liberal terms in many years). While the majorities may shift around somewhat in various cases, this current Court is very much guided by Justice Kennedy, with limited exceptions. I don't think this term presages anything for the future of the Roberts Court in its current composition. Affirmative action may be coming to an end in the next term. The case that really scares me is Friedrichs v. California Teachers Association. Alito is basically leading a crusade against public sector unions and I don't see where any defection from the right is going to provide a fifth vote to save them (at least at this early stage).

Even in dissent though, I think the liberal wing is laying down a huge foundation for when liberals eventually recapture the majority. (I think a Democratic win in 2016 substantially increases the chances of that happening, but would by no means be certain. If Democrats win both 2016 and 2020, I think we could be looking at as high as a 6-3 liberal majority.) In the case of Citizens United, stare decisis be damned, a new liberal majority would not hesitate to overturn (just as a solid conservative majority would not hesitate to fully overturn Roe v. Wade). Unlike a number on the left, I don't share the opinion that the liberal wing on the Court is moderate. I think they are just trying to be as effectual as possible with a right-of-centre majority. Breyer's dissent in Glossip leads me to believe that a new liberal majority would do something not even the Court of the '60s or '70s could do; I think a liberal majority could categorically rule the death penalty unconstitutional.