By Jeffrey Toobin
The conservatives on the Court are poised for a comeback. Credit Photograph by Alex Wong/Getty
The beleaguered liberals on the Supreme Court had a great deal to celebrate in the term that ended in June. Two epic cases, and even some lesser ones, went their way. In Obergefell v. Hodges, the Justices ruled, five to four, that all fifty states must recognize same-sex marriages. And in King v. Burwell, the Court, by a vote of six to three, dismissed a challenge to the Affordable Care Act that might have, as a practical matter, destroyed the law. A surprising victory in a housing-discrimination case and another where the Court allowed limits on judges’ soliciting campaign contributions completed a major run of progressive victories.
Don’t expect the streak to last. The liberals’ big victories last term arose from a very particular set of circumstances. Justice Anthony Kennedy has displayed a consistent respect for the rights of gay people, which made his alliance with the four liberals (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) on same-sex marriage almost a foregone conclusion. In King v. Burwell, a group of conservative legal activists pushed such a transparently fraudulent claim about the text of the Obamacare law that Chief Justice John Roberts and Kennedy (who are no fans of the law) had to reject the claim.
But the conservatives on the Court are poised for a comeback, and the subjects before the Justices appear well suited for liberal defeats. Consider:
Affirmative action. The Chief Justice has been primed to get rid of any kind of racial preferences since he took office, a decade ago. In 2013, in Fisher v. University of Texas, the Justices essentially kicked the issue of affirmative action in college admissions down the road. Lower courts upheld the Texas plan, which allows an extremely limited use of racial diversity in admissions. Now the Supreme Court has agreed to hear the case a second time—an unusual step in itself. It’s hard to imagine that the Justices reached out for this case again simply to preserve the status quo. A decision limiting—or eliminating—racial preferences in admissions seems highly likely.
Abortion. After the Republican landslides in the 2010 midterm elections, more than a dozen states tightened their restrictions on abortion. No state banned abortion altogether, but several came close. Some have banned abortion after the twentieth week of pregnancy, and others have imposed requirements on clinics that make them virtually impossible to operate. (For example, the laws require that doctors who provide abortions must have admitting privileges at local hospitals; they also impose on clinics the building standards of ambulatory surgical centers.) In Texas, the new rules would require all but nine abortion providers in the state to close their doors. It’s true that, in June, five Justices (the liberals plus Kennedy) issued a stay, preventing the law from going into effect; but Kennedy has favored limits on abortion in recent years, and there is every reason to believe he will support these new ones, too.
Public-employee unions. At the end of June, the Justices agreed to decide Friedrichs v. California; it could sharply limit the power of public-employee unions, which have been bulwarks of support for Democratic office-holders. In states like California, public employees who choose not to join a union must still pay the equivalent of dues (“fair share” fees) when the union negotiates their contracts. If the challengers win this case, the unions may lose millions of dollars in revenue, with a consequent loss of power. Since public-employee unions have done so much better than private-sector unions in recent years, that would hurt the union movement as a whole in an especially vulnerable place. The campaign against fair-share fees has been a special crusade for Justice Samuel Alito, and he may kill them off for good this time.
There is not yet a major campaign-finance case before the Justices, but in an election year it would be no surprise to see one surface. The conservative majority, led in this case by Kennedy, has shown no sign of backing away from its Citizens United decision, from 2010, which said that campaign contributions are a form of free speech. On the rights of criminal suspects, especially those sentenced to death, the Court remains deeply conservative as well. It only underscores the magnitude of the liberal victories in 2015 to recognize that they may seem deeply aberrational in 2016.
The Coming Liberal Disaster at the Supreme Court - The New Yorker
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