What’s the Significance of the Roberts Court’s Relatively Liberal Term?

NYT’s The UpShot crunches the numbers and find that this term liberal outcomes have prevailed more than in a number of years:

The Supreme Court under Chief Justice John G. Roberts Jr. has been a conservative court. But even conservative courts have liberal terms – and the current term is leaning left as it enters its final two weeks.

The court has issued liberal decisions in 54 percent of the cases in which it had announced decisions as of June 22, according to the Supreme Court Database, using a widely accepted standard developed by political scientists. If that trend holds, the final percentage could rival the highest since the era of the notably liberal court of the 1950s and 1960s led by Chief Justice Earl Warren. The closest contenders are the previous term and the one that started in 2004 and ended with the announcement of Justice Sandra Day O’Connor’s retirement.

I think the trend this term is real; indeed I tweeted about it last week. Indeed, if same sex marriage prevails and Obamacare survives unscathed, it would really solidify the term as a liberal one. (Though as I told the Times, if these cases came out the other way no one would think of the term as liberal at all).

Nonetheless, this doesn’t mean we have a liberal Court or that liberal trend will continue.  But here are some thoughts on the phenomenon and significance:

1. Case selection. As Cass Sunstein noted, “Discussion of supposed leftward shift of Sup Ct does not control for selection effects – case mix is not constant.”  It is not just that the Court gets to deny cert in cases, and avoid certain issues such as abortion cases or affirmative action, much of it is the luck of the draw in terms of what cases make it up to the Court.  And litigants self-select.  For a long time liberals have wanted to stay out of the Court in many classes of cases (e.g., voting rights or campaign finance cases) because they know where five votes are.

2. Counting just opinions. Thinking of the Supreme Court allowing Texas to use its draconian voter id law during the 2014 election seems like a pretty “conservative decision.” But because it happened on an emergency stay, it did not lead to a formal opinion that counts in The UpShot’s numbers.  Nor will decisions on abortion clinics.  Some of what the Court does is not reflected in opinions.

3. All cases not created equal, and all Justices are not equal. A few years ago the Court gutted the Voting Rights Act on one day and then the next day took a great step toward recognizing same sex marriage. Those cases loomed over the entire term.  And of course there was only one Justice in the majority in both cases: Kennedy. They reflected Kennedy’s views, which are conservative/libertarian but with streaks of liberalism in isolated areas.

So yes it is true that the term is trending liberal. And that’s a good thing if you are a liberal. But don’t expect the Court to stay this way, not even into next term (or next week).

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