The Supreme Court’s real bloc is liberal

by Fred Barnes   October 10, 2019

To President Franklin Roosevelt’s dismay, a Supreme Court bloc of six conservative justices struck down key parts of the New Deal in the 1930s. But by 1945, there was an FDR bloc. He had appointed all nine justices. For much of the 1960s, a liberal bloc was in command.

It’s hardly a surprise when a group of Supreme Court justices makes a point of voting alike. But today’s liberal bloc is different than those of the past. The four liberal justices are not in charge, yet they play a more prominent role than most minorities. This is no accident. They plot to speak with one voice and usually succeed. They’re motivated, cohesive, and disciplined. As a result, they punch above their weight.

The liberalism of all four is reliable, though not identical. Judging by their written opinions, comments and questions at oral arguments, and what they say in interviews and speeches, Sonia Sotomayor is the most liberal, with Ruth Bader Ginsburg close behind. Stephen Breyer is third, followed by Elena Kagan.

The most significant difference among the four is their readiness to compromise and make deals. Breyer and Kagan are the dealmakers. To attract the fifth vote and prevail in a significant case is their fondest dream. They agreed to drop the requirement that states expand Medicaid to get Chief Justice John Roberts’ vote to uphold Obamacare. And they voted with him on the Medicaid maneuver.

The next best thing is to water down a decision favored by the conservative majority. Breyer and Kagan managed this in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case of the Christian baker in Colorado who refused to make a cake for a gay wedding. The baker won the case, but they narrowed the issue to the baker’s religious rights, not the more far-reaching matter of discrimination.

One should not exaggerate the success of the liberals’ strategy, but it has worked well enough for Ginsburg to brag about it in an interview with NPR’s Nina Totenberg in 2015. Ginsburg said “the unity policy” began after the Bush v. Gore decision in 2001. The liberal justices “were unable to get together and write one opinion,” she said because time ran out. Each wrote a separate dissent.

Afterward, Ginsburg said, “we agreed [that] when we are in that situation again, let’s be in one opinion … If you want to make sure you’re read, you do it together, and you do it short.”

Ginsburg, Totenberg wrote, “seemed to acknowledge that the unity policy that the more liberal members of the court have tried to follow” worked in the 2014-2015 court term “with stunning success, especially as contrasted with the work of the court’s more conservative justices. The four most conservative members of the court wrote a total of 78 dissenting and concurring opinions, as contrasted with the four liberals, who wrote a total of 27.”

And liberal unity worked again in the 2018-2019 term, the first after Brett Kavanaugh replaced Anthony Kennedy. Many expected conservatives to dominate this term. The results fell short of such high hopes.

The liberals voted together on 51 of the court’s 67 opinions, while conservatives did so on 37, Cato’s Ilya Shapiro noted in USA Today. Of the 20 5-4 decisions, conservatives won in only seven. “By the end of the term,” Shapiro wrote, “each conservative justice had joined the liberals as the deciding vote at least once.” Votes by Chief Justice Roberts (3 times) and Justices Neil Gorsuch (4), Clarence Thomas (1), Samuel Alito (1), and Kavanaugh (1) all led to liberal victories in 5-4 cases.

“It’s notable that there’s never a question of how the liberal justices will vote,” Shapiro observed. “Speculation runs rampant over whether one of the conservatives will go wobbly — whether out of unpredictable moderation, minimalistic pragmatism, or idiosyncratic theory — but the liberals are guaranteed to please their constituency.” In other words, the liberal bloc is unified.

They sounded like a team last week during oral arguments for the first big case of the 2019-20 term. The issue was whether Title VII of the 1964 Civil Rights Act covered transgender and gay workers. The Washington Postnoted there “seemed little doubt” the four would all vote to extend the act to protect those workers.

“The original Congress who wrote this statute told us what they meant,” Sotomayor insisted. “They used clear words. And regardless of what others may have thought over time, it’s very clear that what’s happening fits those words.” But this wasn’t clear to the court’s conservatives, who said it was a matter for Congress to clear up, not the court.

The divide on the Supreme Court reflects the polarization in national politics and Congress. And the parties make an effort to pick reliable justices — that is, reliable ideologically. That often means lower court judges with either liberal or conservative records. Democrats haven’t nominated a moderate, much less a conservative, to the court since Byron Raymond “Whizzer” White in 1961, and the last Republican nominations of nonconservatives went to John Paul Stevens in 1975 and David Souter in 1990. White was the last Democrat-appointed justice to vote against Roe v. Wade. And Stevens and Souter turned out to be left-of-center justices.

“There’s more of a chance there will be opposition to a justice” — that is, a nominee — said Terry Eastland, an authority on the Supreme Court. He’s right. And the court itself faces more criticism because people see it as a cousin of the political institutions with which they are familiar and unhappy.

Roberts and Kagan object. “We don’t go about our work in a political manner,” Roberts told a New York audience in September. Sorry, but folks remember how justices got to the court in the first place: through politics.

“This is, in some respects, a dangerous time for the court,” Kagan said in 2018. “And it’s because, I think, people increasingly look at us and say, ‘this is just an extension of the political process.’” How could they think anything but after watching the Kavanaugh hearings?

It’s not unusual for Roberts and Kagan to agree. They both want the court’s rulings to be as narrow as possible. Roberts is an institutionalist. Navigating the court through a difficult period politically is his aim. If he wants to have a legacy as the chief justice of the Roberts Conservative Court, he isn’t acting as if he does.

That should suit Kagan just fine. Her tactic is to take “big questions and make them small.” Roberts did that in Masterpiece Cakeshop, and she jumped at the chance to vote with him. He did the same on the proposed citizenship question on the census. Again, they voted together.

Kagan has at least three great traits: She’s smart, a terrific writer, and gregarious. As Harvard Law dean, Kagan negotiated a truce between liberal and conservative professors. She wrote a strong dissent to Roberts’ ruling inRucho v. Common Cause, which kept the courts out of gerrymandering cases. Liberals loved it, and when she went hunting with the late Justice Antonin Scalia, conservatives loved it.

These traits help to explain why so many people in law and politics expect Kagan to be the next chief justice if Roberts steps down and a Democrat is elected president. Plus, she’s 59, which is just the right age. She is not too young and not too old. And she will be close enough to the right age five years from now.

In digging through clips about Kagan, I was surprised to find one from 2013 in which she was likened to Chief Justice Earl Warren. She “shares many of his talents,” Slate’s Adam Winkler wrote. “Her rise was fueled by her relationships and networking … Kagan is the justice most likely to reach across the aisle and become a true leader of the court.”

But Kagan is not the most popular justice. Ginsburg, at 86, is. The specifics of her voting record are not well-known, but those of her early career as a lawyer are. There’s a movie about her efforts, as a young law school graduate and a mother, to clerk for a judge or work for a law firm. Women and mothers didn’t get those jobs 60 years ago. Only when threatened by one of her law professors did a judge hire her.

More than a judge, Ginsburg is a star. She’s been nicknamed the “Notorious RBG” after the rapper The Notorious B.I.G. “It’s coincidental,” she said at the recent National Book Festival. “We were both born and raised in Brooklyn, New York.”

The first question she was asked in an interview at the book festival regarded a phone call she had received from Jennifer Lopez. She wanted to introduce Ginsburg to her fiancé, Alex Rodriguez. Lopez asked Ginsburg her “secret about a happy marriage.” Ginsburg repeated what her mother-in-law had told her: “It helps to be a little deaf.”

Like Kagan, Ginsburg likes to tell Scalia stories. When she wrote the majority opinion in the case opening Virginia Military Institute to women, Scalia was the lone dissenter. He said the decision would “destroy” VMI. However, it didn’t.

Ginsburg shows no interest in retiring, though she has had cancer. “She seems to be invincible,” says Josh Blackman, a professor at South Texas College of Law.

Sotomayor, 65, is the third woman to become a justice on the Supreme Court. She was a prosecutor in New York City, then a trial judge, before working her way up the federal judicial ladder. She is known for jumping on any mistakes by lawyers.

Breyer, 81, has been a justice for 25 years. He was a law professor at Harvard, an expert in administrative law, and later worked with the late Sen. Ted Kennedy on deregulation of the airline industry. He is a sharp critic of originalism, the judicial philosophy popularized by Scalia. Rather than focusing on the language of the law, he emphasizes its “purpose and consequences.” The liberal bloc needs an anti-originalist to rebut conservatives.

What is the future of the liberal bloc? Ginsburg and Breyer are in their 80s, which suggests that one of them may be forced to leave the court before President Trump’s term ends in January 2021. And Senate Majority Leader Mitch McConnell has vowed to confirm a nominee if there are at least two months left before a new Senate takes office on Jan. 1, 2021.

A sixth justice would put conservatives in a commanding position on the court. “You’re in business if you have the sixth,” Blackman says. “You could achieve conservative decisions.” Conservatives would dominate the court as they haven’t in many decades.




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