Justice Kennedy votes to strike down portions of the Arizona immigration law. Roberts upholds the constitutionally of Obamacare. Ginsburg, joining with conservative justices, rules affirmative action unconstitutional.
Obviously, that last one never happened nor does anyone believe that Ginsburg, or any other liberal justice, is going to vote that way when the Supreme Court hears a case challenging the constitutionality of affirmative action in its next term. As we’ve been reminded by the Obamacare decision, crossing over the ideological divide is only for conservative justices.
Despite this, the Obamacare ruling still came as a surprise to many liberals, having spent the past few months describing the court’s conservative wing as nothing more than an arm of the Republican Party.
On the other hand, it surprised no one that the court’s liberals voted unanimously to advance their ideologically preferred outcome. The pundits who questioned the legitimacy and independence of the court’s conservatives never considered that perhaps the justices on the court who are too politically partisan are those with liberal politics. Indeed, while conservative justices switching sides on landmark cases has been a fairly common occurrence for decades, liberal defections in such cases almost never happen.
It has even become routine for legal experts and media commentators predicting outcomes of politically controversial cases to only consider the possibility of conservative justices breaking rank. It’s taken for granted that no liberal member of the court would join with the conservative justices. This is why in all the Obamacare case analysis, never did a single member of the media or legal establishment entertain the notion that a liberal justice would vote to strike down the law. A liberal justice ruling against Obamacare? That would be absurd!
Yet, the media continuously informed us that had the conservative justices voted in unison, just as the liberal justices ended up doing, it would have destroyed the legitimacy of the court. The New Republic ran an editorial warning the Supreme Court justices that “the reputation of [their] institution hangs in the balance.” Likewise, The Atlantic’s James Fallows wrote that “the Roberts majority is barreling ahead without regard for the norms, and it is taking the court’s legitimacy with it.” We can only hope that last week’s ruling restored the media’s faith in the institution.
Of course, the media sees no irony in clamoring for a less polarized Supreme Court while remaining supportive of the liberal justices’ unwavering partisanship.
Ultimately Obamacare was upheld, so the court, we are told, can now reclaim a piece of its legitimacy. And although it was a conservative justice who switched sides, the media has decided that Roberts’ decision lends legitimacy to the entire court. This despite the familiar pattern of the court’s liberals voting in lockstep.
Moreover, according to insiders, it was the precise fear of a delegitimized court that pushed Roberts to save Obamacare. Describing this likely consideration, New York Magazine’s Jonathan Chait writes:
“Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled. The long-term war over the shape of the state goes on, but the crisis of legitimacy has been averted.”
It’s doubtful, though, that Mr. Chait or his colleagues ever considered whether any liberal justice peered into this abyss prior to toeing the Democratic Party line and voting to uphold Obamacare.
Indeed, liberal justices on the Supreme Court so seldom break rank with one another on major cases that if a current conservative justice retired and was replaced with a liberal, all politically controversial cases would have foregone conclusions. It’s unlikely that conservatives would hold their collective breath for any liberal justice to cross over the ideological divide. With a liberal majority, other than predicting which cases the court will choose to hear, there would not be much for legal experts to discuss.
So with all the media concern over the Supreme Court’s politicization, you would think a little more attention would be paid to the fact that liberal justices never vote against their politics. We just witnessed the entire media establishment lavish praise on Roberts for bucking his party and upholding the mandate. Where are the liberal justices that will give the conservative media the occasion to do the same for them?
Mendy Finkel is a corporate attorney practicing in New York. He is a graduate of Columbia Law School.