I hear that EVERYONE is up in arms over the way the Supreme Court has ruled on this term’s cases. Conservatives are mad about the rulings on gay rights, liberals feel savaged by the ruling on the 1965 Voting Rights Act. Both are upset about the not ruling in the affirmative or negative on Affirmative Action. Indians are crying foul over an adoption case. All over the country, municipalities are wrinkling their noses over “new” limits on eminent domain laws. Governors had a large part of their executive authority executed, thanks to an overlooked ruling. Felons woke up with a hangover, realizing that they’re never going to be free of the Department of Justice. And in what may be a first, the Court managed to upset both liberals and conservatives with a pair of anti-discrimination decisions.
Yes, there was something in this term to make EVERYONE upset with the 9 Justices. Everyone, that is, except libertarians. We’re actually smiling at the end of this term. Essentially, the Supremes ruled that trying to regulate all of these social wedge issues are nothing more than a waste of EVERYONE’s time and effort.
The reason for this is actually easy to understand, if you look at the Court’s makeup. There are four staunch liberals, three staunch conservatives, one constitutional conservative and one originalist. If you’re unfamiliar with the terms, here’s a layman’s way of defining it:
- Justices Thomas, Alito and Scalia are the staunch conservatives. They generally rule for limiting government authority, except on social issues – where expansive government is perfectly acceptable in promoting socially conservative values.
- Justices Ginsburg, Breyer, Sotomayor and Kagan are staunch liberals. They generally rule for expansive government, period. Unless the expansive government happens to directly threaten a liberal social value.
- Justice Kennedy is the constitutional conservative. He actually reads the text of the Constitution and tries to see where the issue lies within the document. Once upon a time, this is what social conservatives swore they wanted (remember the arguing over “strict constructionalism” in the late ’90s?). Then Kennedy started making decisions that weren’t socially conservative. That narrative is almost never heard anymore.
- Chief Justice Roberts is the originalist. He weighs precedent to see how past Justices have interpreted the Constitution and apply that to modern cases.
So, how does this wind up with a more or less libertarian court? In almost any case involving a socially divisive issue, there will be four votes for the liberal position and three for the conservative, even before oral arguments. This leaves Chief Justice Roberts and Justice Kennedy as the deciding votes on these cases. Justice Roberts tendency to avoid making new law from the bench means he generally votes with the conservative justices. That leaves Justice Kennedy, who is more concerned with actually applying Constitutional principles to the case being decided.
This dynamic gave us what we’ve seen this term. Kennedy voted with the majority in every decision, except for Hollingsworth v. Perry. In that case (the punt on Prop 8), there was a rare majority of conservative and liberal justices who voted 6-3 that the plaintiffs didn’t have standing to bring the case. Kennedy, in his dissenting opinion, wrote that he believed the court had standing to decide the case regardless of the plaintiffs and that remanding it to lower courts only ensured the case would return later (he’s probably right, too).
Most commentators like to portray Justice Kennedy as a Reagan conservative who has surprised conservative lawmakers by often voting with the Court’s liberal bloc. I often wonder where these people have been for the past 30 years. While it is true that he was nominated by President Reagan in 1987, anyone who has cursorily reviewed his prior rulings would understand that his primary concern has been in determining the limits of government power. Among his 9th Circuit rulings can be found ideas like “indifference to personal liberty is but the precursor of the state’s hostility to it” and “a zone of liberty, a zone of protection, a line that’s drawn where the individual can tell the Government, ‘Beyond this line you may not go.’” These are the same principles that define the libertarian cause. Given that the “swing vote” of the Supreme Court espouses libertarian views, why is anyone shocked when the courts decisions follow the same?
For all practical purposes, the political result is that neither liberals nor conservatives are going to be terribly happy with this court. Which is how the Court’s decisions should affect popular opinion. After all, is the Supreme Court is supposed to be an independent arbiter on the Constitutionality of the laws passed by the Legislative branch and the regulations created by the Executive. It isn’t supposed to stick a collective finger in the air to determine which way the political winds are blowing.