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Supreme Court, without Scalia, leaning liberal for second year

Monday, May 2, 2016

By Richard Wolf

WASHINGTON — When the Supreme Court completed its last term in June by upholding same-sex marriage and Obamacare, conservatives predicted this year would provide an about-face from a surprising string of liberal victories.

It hasn't turned out that way. The death in February of Justice Antonin Scalia, combined with the same factors that gave liberal justices an advantage last year, has led to a continuation of the trend. That has left conservatives even more determined to block President Obama from replacing Scalia.

From voting rights and the power of labor unions to class action lawsuits against corporations and the rights of criminal defendants, the court's four liberal justices have been on the winning side of every major decision so far this term. Oral arguments were completed on Wednesday, and 32 of 69 cases have been decided.

For a court that has leaned conservative for decades, the question is whether the two-year trend indicates a fundamental change or a legal version of a stock market correction. Until a ninth justice is named, the answer will remain elusive.

"It's something of a realignment after an extreme push to the right led by Justices Scalia and (Samuel) Alito," said Elizabeth Wydra, president of the liberal Constitutional Accountability Center. "I think there’s some pullback from that very ideological push.”

Only the most closely divided cases — those that used to result in 5-4 decisions — are directly affected by Scalia's death. In a major case on public employee unions, his absence caused a 4-4 tie that left intact a decision by the U.S. Court of Appeals for the 9th Circuit allowing the California Teachers Association to continue collecting fees from non-members.

Similar 4-4 votes on some of the term's major remaining cases could boost conservative causes, based on federal appeals court decisions. That might apply to immigration and abortion cases from the more conservative U.S. Court of Appeals for the 5th Circuit, which handles cases from Texas, Louisiana and Mississippi. But Texas' tough restrictions on abortion clinics are considered more likely to be struck down with the support of Justice Anthony Kennedy, who often sides with the court's liberal bloc.

Kennedy, in fact, hasn't been alone in giving liberals their latest string of victories. Chief Justice John Roberts also sided with the majority in important cases affecting class action lawsuits, criminal defendants' rights and federal energy regulations.

That has left Alito and Justice Clarence Thomas on the losing side in most of the major cases so far. Thomas has dissented seven times and Alito six; no other justices has dissented more than four times.

"The easiest explanation for the term shaping up to be a bust for conservatives is that the liberals regularly vote as a bloc in cases that have an ideological valence, and the conservatives have lost the fifth vote they need to prevail when the lower court went the other way," said John Elwood, an appellate lawyer who appears frequently before the court. "The math is just much worse since Scalia’s death."

Like last year, conservative interest groups brought cases to the court that were extremely difficult to win. The decisions upholding "fair share" labor union fees from non-members and the principle of "one person, one vote" merely left existing laws in place.

Roberts and his colleagues also have sought compromise rulings rather than emerge with a succession of tie votes that would leave the court looking "like a potted plant," said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund.

The two voting rights cases — upholding the use of total population rather than eligible voters in drawing election districts, and allowing population variances in order to help minority groups — were crafted narrowly by Justices Ruth Bader Ginsburg and Stephen Breyer to attract unanimous 8-0 votes.

Of the 37 cases still to be decided, a few will determine whether the term's liberal tilt remains intact or swings back the other way. "There are three cases that haven't come down yet that might well turn this into a blockbuster for the conservatives," said Pamela Karlan, co-director of Stanford Law School's Supreme Court Litigation Clinic.

Affirmation actionOnly seven justices will be voting on the University of Texas' use of racial preferences in admissions, which gives conservatives an improved chance of reversing the practice. Justice Elena Kagan recused herself because she was involved in the case as U.S. solicitor general.

ImmigrationThe court's four conservative justices appeared dubious during oral argument that Obama has the power to defer deportation proceedings against more than 4 million undocumented parents of children who are citizens or legal residents. A tie vote would doom the program.

Contraception: Appearing deadlocked at oral argument over religious non-profits' challenge to a federal requirement that employers' insurance plans offer free coverage of contraceptives, the justices later asked both sides about a possible compromise. A tie vote would uphold lower-court rulings that differ by region.

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This piece appeared in at least the following additional outlets:

  • Arizona Republic
  • Chicago (IL) Sun-Times
  • Dayton (OH) Daily News