The way liberals see it, the Supreme Court’s four liberal justices often side with conservatives on major cases. Why, then, don’t we see outrage from liberals when one of their justices breaks rank, as we saw with conservatives when Chief Justice John Roberts voted to uphold the constitutionally of Obamacare? In fact, it’s hard to think of any examples of liberals being outraged at liberal justices for crossing the ideological divide.
Slate’s Dahlia Lithwick tried to answer this question in a recent piece titled “Where is the Liberal Outrage?” Interestingly, her piece does more to undermine the narrative that liberal justices frequently side with conservatives on major cases than it does to answer her question.
Let’s start with the examples Lithwick provides to support her assertion that liberals have been apathetic in the face of their justices handing conservatives major victories:
The court’s liberals voted to find a ministerial exception to employment discrimination laws for religious schools and churches; ruled against the EPA in a wetlands case; and … the court’s liberals pretty much crushed the Obama administration again this term [in ruling against the Obamacare Medicaid expansion]. Yet you don’t find liberals burning their Stephen Breyer Pokémon cards.
Now, if these are the best examples of liberal justices siding with conservatives, then Lithwick is answering her own question. The four liberal justices literally saved Obamacare and Lithwick expects liberal outrage over the Medicaid expansion ruling? As for the other two cases she mentions, neither was anywhere near as high profile or politically controversial as the Obamacare ruling, so it’s hardly surprising that they didn’t provoke more of a reaction from the left.
Lithwick, however, attributes the lack of anger from liberals to the fact that the public has come to expect greater diversity of opinion from liberal justices than they do from conservative justices. As such, liberals have accepted this as their reality and therefore aren’t “bothered” by their justices’ apostasies. Moreover, she explains, because most liberals aren’t very familiar with liberal constitutional principles, they’re unlikely to get upset when liberal justices violate those principles. It’s hard for liberals to be outraged at justices when they don’t even know what they want those justices to stand for.
But liberals do express outrage when Supreme Court decisions don’t go their way. Only a few weeks ago, Lithwick herself wrote about the “lingering public outrage over Citizens United.”
What’s more, the entire media establishment was most certainly “bothered” enough about the possibility of the court striking down Obamacare to initiate a sustained assault against the court’s legitimacy in the months leading up to the Obamacare decision. The expectation that the five conservative justices would stick together did nothing to assuage the media’s preemptive outrage.
The real reason there are so many examples of conservatives being outraged at conservative justices and so few examples of liberals being outraged at liberal justices is that while conservative justices frequently cross the aisle on the most controversial and high-profile cases, liberal justices almost never do. That is to say, when liberals are on the losing end of a major case, it is almost never the result of one of their justices switching sides.
So when liberals cite cases where their justices sided with conservatives, they are comparing apples and oranges. The Obamacare case was the most controversial and high-profile case this court-term. To compare it to an EPA wetlands case no one has heard of is absurd.
Later this year, the Supreme Court will hear a high-profile affirmative action case. In the weeks and days leading up to the ruling, discussion of the case will dominate the national media. Much like with the Obamacare case, pundits and legal experts will attempt to predict the outcome, and much like with the Obamacare case, none of these legal experts will even consider the possibility that a liberal justice will rule against the constitutionality of affirmative action.
Of course, Ms. Lithwick is in a perfect position to prove me wrong and inform us all which liberal justice will play the role of John Roberts and cross the ideological divide on this politically charged Supreme Court case. After all, liberal justices are expected to do so.
Mendy Finkel is a corporate attorney practicing in New York. He is a graduate of Columbia Law School.