Is the Roberts Court Partisan?
Hans von Spakovsky /
One of the frequent claims we hear from liberals is that the justices on the Supreme Court who are dubbed “conservative” are (in contrast to the liberal justices) just driven by politics, pro-business and anti-plaintiff, and not considerate of due process and that cases are constantly decided by 5–4 splits between the conservatives and the liberals. The court’s history shows that to be untrue, and a number of decisions released by the Supreme Court over the past few weeks illustrate the falseness of that narrative.
On June 21, the court issued an interesting series of decisions in which there was a mix of the justices on different sides of the issues at stake. For example, in Knox v. SEIU, the court held that unions must get consent from their non-members (in states that require non-members to pay union dues for collective bargaining) to impose special assessments or dues increases that will be used for political purposes. This was a win for the First Amendment and the rights of individuals and a big loss for unions—and it was not a 5–4 judgment. Justices Sotomayor and Ginsburg, two of the most liberal members of the Court, concurred in the judgment by Justices Alito, Roberts, Scalia, Kennedy, and Thomas—although with some different reasoning. Only Justices Breyer and Kagan dissented from an opinion that protects the rights of individuals forced to join a union in a close-shop state.
In another First Amendment case, FCC v. FOX, all of the justices with the exception of Ginsburg (who joined the judgment in the case) and Sotomayor (who took no part in the case) found that the FCC’s application of an order declaring that fleeting expletives could constitute a violation to broadcasts that occurred before that order was issued violated due process. So the conservatives joined with the liberal justices to uphold due process rights. In Southern Union v. U.S., Roberts, Scalia, and Thomas (three of the stalwart “conservatives”) joined Ginsburg, Kagan, and Sotomayor (three of the stalwart “liberals”) to hold that the jury trial requirements of the Sixth Amendment apply to criminal fines imposed on a company convicted of illegally storing a hazardous substance: liquid mercury. The Court’s ruling means that it should have been up to a jury, not a judge, to determine the maximum amount of a criminal fine applicable to a violation. This is not a result that most liberal environmental organizations would like. But it should be one that most civil libertarians would, since the Court dismissed the government’s alarming claim that juries cannot be trusted to make such a determination.
On June 16, eight of the justices joined together again to protect the right of an individual to challenge the federal government’s decision to acquire land for an Indian tribe to use as a casino. Only liberal Justice Sotomayor dissented. On the same day, there was a 5–4 decision holding that the federal government must pay the full amount of each of its contracts with Indian tribes under the Indian Self-Determination and Education Assistance Act. Contrary to what you might think if you only read the Supreme Court analyses of the liberal press, it was actually Justices Scalia, Kennedy, Thomas, Kagan and Sotomayor who made up the five-justice majority that decided the case against the government and in favor of the Indian tribes. The four dissenters were Roberts, Alito, Sotomayor, and Breyer—an even split between two liberal and two conservative justices.
On June 11, all of the justices joined together in a criminal habeas corpus case, Parker v. Matthews, to overturn the Sixth Circuit Court of Appeals, holding that the appeals court had ignored the text of the Antiterrorism and Effective Death Penalty Act, Supreme Court precedents, hornbook evidence law, and common sense in granting relief to a murderer “based on the flimsiest of rationales.” The liberal justices seemingly had the same concern as the conservative justices over a lower court not following prior precedent and providing relief without a valid claim to a convicted criminal.
On the same day, in Elgin v. Dept. of Treasury, six of the justices (Roberts, Scalia, Thomas, Kennedy, Sotomayor and Breyer) threw out a claim by a federal employee filed in federal court, holding that under the Civil Service Reform Act, such employees must file administrative claims with the Merit Systems Protection Board. Many liberals might see this as a decision going against the employment rights of individuals, but that did not change the votes of liberal Justices Breyer and Sotomayor. And it was Justice Alito, who is considered a doctrinaire conservative by liberal academics, who joined with Ginsburg and Kagan in a dissent that said that federal employees who are challenging the constitutionality of a federal statute should be able to go straight to court.
Even worse from the standpoint of liberals, on May 29 all of the liberal justices joined with the conservatives (except for Kennedy, who took no part in the decision) in Radlax v. Amalgamated Bank to deliver a unanimous opinion going against a bankrupt debtor and in favor of that horror-of-horrors, an “evil” commercial bank. What were the liberal justices thinking? Obviously, if there were an Occupy Wall Street club and they were members, their membership would have to be revoked. And the liberals joined the conservatives again on the same day in another unanimous decision in Coleman v. Johnson, which tossed out a writ of habeas corpus improperly granted to a criminal defendant.
Finally, on May 24, the court issued a unanimous decision in Freeman v. Quicken Loans, which found against the individual plaintiff in a real estate case and in favor of Quicken Loans, another one of those “terrible” loan companies that the left is always complaining about. I guess we would have to say, at least according to the irrational standards applied by liberal academics and critics of the court, that the liberal justices found in favor of big business, denying the rights of the poor victims of corporate America.
Of course, what actually happened in these cases is that the conservative justices who are constantly criticized by liberals applied the law to the facts. They didn’t look at who the parties were and try to find in favor of whichever one they had the most sympathy for. It is that kind of results-driven judging that liberals want out of the courts and particularly the Supreme Court, and it is when they don’t get it from the conservatives on the Supreme Court that they complain about them.
We may very well get split decisions in the Obamacare and Arizona immigration cases. But if we do, it won’t be, as The New York Times is sure to claim if they don’t like the outcomes, because the conservative justices favored certain parties or politicized their legal determinations. It will be because the conservative justices believe that the Constitution should be interpreted and applied as it was written and intended not as a “living” document that should be changed to fit the ideological and social beliefs of individual justices. Let’s hope that the other justices for once apply the same rules and acknowledge that the Constitution established a government of limited and express powers, not the unrestrained, all-powerful behemoth that too many liberals seem to want today.