For years Supreme Court Justice Sandra Day O’Connor, a Reagan appointee, was the court’s swing vote — i.e., a justice who frequently crosses party and ideological lines to vote with the other side. When she retired, Justice Anthony Kennedy, another Reagan appointee, embraced the swing-vote mantle.
Now that Kennedy is retired, Chief Justice John Roberts, a George W. Bush appointee, has become the swing vote, with Justice Neil Gorsuch, a Trump appointee, possibly waiting in the wings.
Do you detect a pattern here? The court’s four liberals never become the swing vote. That dubious distinction always goes to a Republican appointee.
There are, of course, times when the court’s liberals and conservatives agree, and occasionally a justice will cross the aisle to support the other side.
But when the issue before the court has a clear ideological or partisan divide, the four liberals march in lockstep. It’s one of the court’s conservatives who provides the fifth vote to give liberals a victory.
Sometimes it’s more than a swing vote. President George H.W. Bush nominated Justice David Souter. Souter didn’t even fain at being a swing vote; he identified with the liberal wing.
Or how about Justice Lewis Powell. President Nixon nominated Powell, who was considered a moderate Democrat – they still existed back then – and he became a swing vote.
Oh, did I mention that Powell joined the court’s majority in upholding Roe v. Wade, which struck down most state laws restricting abortion?
Why so many Republican-appointed justices feel obliged to provide liberals with their fifth vote is a mystery. As is their legal reasoning when they do so.
Take the five-four decision upholding the Affordable Care Act (ObamaCare). All four of the court’s liberals agreed that the U.S. Constitution’s Commerce Clause allowed the federal government to mandate that people have health coverage.
Chief Justice Roberts couldn’t go that far, so he argued that the penalty for not having coverage was in effect a tax, and the federal government is clearly allowed to tax.
Not one of the other eight justices thought that was a viable legal theory, but the four liberals didn’t care how Roberts got them over the five-vote hump. They just wanted a yes vote, and they got it, ensuring the health insurance mandate, and ObamaCare in general, would be the law of the land.
Last week, Roberts sided with the court’s four liberals in what effectively upholds President Obama’s Deferred Action for Childhood Arrivals (DACA) program. Although the chief justice conceded that the Trump administration had the ability to end the program, which was only an executive order and never a law, Roberts asserted the administration did not appropriately follow the Administrative Procedure Act in ending DACA.
The four conservative justices pointed out in their dissent that the Obama administration also failed to follow the APA in imposing the order, so that DACA was never lawfully implemented in the first place.
Also last week Roberts, assisted by Gorsuch, sided with the court’s liberals that the 1964 Civil Rights Act protects gay, lesbian and transgender employees from being discriminated against by employers based on sex.
Writing for the majority, Gorsuch wrote, “Today we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.”
But is it “clear”?
The problem is that it’s unlikely that anyone who voted for the Civil Rights Act in 1964 thought the law included gay, lesbian and transgender people. That view is confirmed by the fact that Congress has tried and failed to pass legislation over the years that would affirm that the law applies to them. No need to pass a law if the text is “clear.”
Gorsuch is supposed to be an “originalist,” someone who embraces the original meaning of the Constitution’s or a law’s text as it is written. And that is the issue here. If the Civil Rights Act’s definition of “sex” is to be expanded to gay, lesbian and transgender individuals, Congress, not the Supreme Court, needs to make that law.
Liberals have long adopted a “living Constitution” view that allows them to impose their progressive views on to the text. Conservatives have generally opposed such efforts — until now.
Liberals cheered the decision, as did many people who believe that no one should be fired based on their sex or sexual orientation. But when justices start applying meanings to words that no one at the time embraced, it opens the door for all types of ideologically based mischief.
The irony in all this is that when Senate Democrats grill a Republican Supreme Court nominee, they scathingly predict the nominee will be closed minded and vote along ideological lines. The truth is that only liberal justices do that, which is why no liberal justice ever becomes the swing vote.