Supreme Court Conservatives: Disagreements Make Them More Liberal

Chief Justice John Roberts (AP Photo)
Chief Justice John Roberts (AP Photo)
Chief Justice John Roberts (AP Photo)

 

(Slate) – In 2010, the New York Times’ Supreme Court reporter, Adam Liptak, wrote an article entitled “Court Under Roberts Is Most Conservative in Decades.” He noted that in its first five years, Chief Justice John Roberts’ court had rendered conservative decisions 58 percent of the time, and in the 2008 term 65 percent, the highest rate in a half-century. The court was “the most conservative one in living memory.” Republicans, who have been trying to move the court to the right since Nixon was president, finally had put into place a rock-solid conservative majority.

On Monday, Liptak and some co-authors published another article, this one entitled “The Roberts Court’s Surprising Move Leftward.” It turns out that the most recent term will be the most liberal since 1969, with liberal decisions accounting for 56 percent of the cases, according to the article. Liberal decisions outnumber conservative decisions over each of the past three years, the first time that has happened since the 1960s. What happened?

Liberals credit—and conservatives blame—Republican-appointed Justice Anthony Kennedy for frequently crossing the line and voting for liberal outcomes. It was Kennedy who wrote Obergefell v. Hodges, the opinion recognizing a right to same-sex marriage. However, Kennedy has been Kennedy since he was appointed in 1988. He has written opinions friendly to gay rights since 2003. Kennedy himself can’t explain a trend.

What does seem to be new, however, is that the Republican appointees on the court have found it increasingly difficult to form a united front against the Democratic appointees. The chart below shows that in the term that just concluded, this trend of disagreement among conservatives accelerated.

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