The Supreme Court ended its most liberal term since 1969 with a determined pushback by the court’s conservatives in two of three final decisions, but liberals still counted victories in most of the term’s major rulings.
The Roberts Court conservatives, including the bloc-shifting justice Anthony M. Kennedy, coalesced on the term’s final decision day [June 29] to reject a challenge to Oklahoma’s protocol for lethal injections (Glossip v. Gross) and to require the Environmental Protection Agency (EPA) to reconsider rules for fossil-fueled power plants to reduce emissions of mercury and other hazardous air pollutants (Michigan v. EPA).
In the third decision, however, Kennedy gave the liberal bloc the critical fifth vote to uphold Arizona’s anti-gerrymandering initiative creating an independent, politically balanced commission for congressional redistricting (Arizona Legislature v. Arizona Independent Redistricting Commission).
The court issued its final decisions just one week after The New York Times had published a data-based analysis describing the 2014-2015 term as the most liberal of any since 1969. In an online updating of the compilation after Monday’s decisions, the Times counted 56 percent of the term’s decisions as liberal.
That was the highest percentage of liberal rulings since Chief Justice Earl Warren’s retirement in 1969, according to the Times, based on a methodology used by the Supreme Court Database, a private research service funded in part by the National Science Foundation. The Times said that the database showed liberals often prevailed in 70 percent or more of the decisions during the Warren Court's 16-year era.
Other number crunchers came up with higher batting averages for the liberals. Tom Goldstein, founder and publisher of SCOTUSblog, wrote in an end-of-term post that out of 26 cases that were "close" and "ideological," liberals prevailed in 19 or 73 percent. This writer, preparing the annual title Supreme Court Yearbook, counts liberal wins in eight of the top 10 cases and in eight out of 11 other “major” cases or 76 percent in all.
The liberal tilt is seen vividly in the term’s 21 rulings decided by 5-4 votes. Kennedy and the four liberals Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan formed the majority in 10 of the cases; Chief Justice John G. Roberts joined with the four liberals in one other. Kennedy and the four conservatives formed the majority in only five. Out of five others, three conservatives were dissenters in three; two conservatives and two liberals dissented in each of the other two.
The liberal tilt is also confirmed by counting dissenting votes. Breyer ended the term with the fewest number of dissenting votes six for the first time under Chief Justice John G. Roberts Jr. and perhaps the first time ever. Kennedy, who has been the least frequent dissenter for most of the Roberts Court years, ended with eight dissenting votes. Besides Breyer, the other three liberal justices each had fewer dissents Sotomayor (8), Ginsburg (10), Kagan (11) than the four conservatives: Roberts (16), Alito (22), Scalia (23), Thomas (25).
Roberts ended the term with the highest number of dissents in any of his 10 terms, surpassing his previous high of 14 in the 2008-2009 term. Roberts had the lowest number of dissents in three of the previous nine terms.
Liberals prevailed in the term’s two biggest headline-grabbing decisions: the ruling to guarantee marriage rights to same-sex couples (Obergefell v. Hodges, 5-4) and the decision to uphold Obamacare subsidies to customers of newly created health insurance marketplaces nationwide (King v. Burwell, 6-3).
Among other decisions in the Supreme Court Yearbook “Top Ten,” liberals upheld broad application of the federal Fair Housing Act (Texas Department of Housing and Community Affairs, 5-4) and judicial ethics rules barring judges from direct solicitation of campaign contributions (Williams-Yulee v. Florida Bar, 5-4). Roberts was the author and the fifth vote in the judicial ethics decision.
The court sided with the president over Congress in striking down a law that would have allowed a U.S. citizen born in Jerusalem to list “Israel” as his or her birthplace (Zivotofsky v. Kerry). Three conservative justices dissented: Roberts, Scalia, and Alito; Thomas concurred in part and dissented in part. In less divided cases, the court somewhat limited the federal threat statute in the closely watched Facebook case (Elonis v. United States, 7-2). And it strengthened religious freedom rights of employees and job applicants (EEOC v. Abercrombie & Fitch, Inc., 8-1).
Against those eight liberal wins, including Monday’s Arizona redistricting case, conservatives counted victories in only two of Supreme Court Yearbook’s “Top Ten”: the decisions Monday in the lethal injection and EPA mercury regulation cases. Among other “major” cases, the conservative bloc plus Kennedy prevailed in only one other 5-4 decision: the ruling to strike down on property rights grounds a U.S. Department of Agriculture marketing program for raisin producers (Horne v. U.S. Department of Agriculture).
The percentage of 5-4 decisions 21 of 66 or 31.8 percent was the highest figure since the 2006-2007 term, when the court hit a historic high with 24 of 68 one-vote decisions or 35 percent. One methodological note: Supreme Court Yearbook counts two cases with partial dissents as 5-4 decisions, although SCOTUSblog counts those rulings as 6-3 (Kansas v. Nebraska, a water rights dispute, and Zivotofsky).