article

07.02.10

The Supreme Court Turns... Left!

As the Senate Judiciary Committee prepares to vote on Elena Kagan in two weeks, there's a growing consensus that the Supreme Court moved further to the right this year. But law professor Adam Winkler says that’s not the whole story—and the liberals won a few, too.

Listening to Democratic senators in the Elena Kagan confirmation hearings, you’d think the Supreme Court shifted dramatically to the right this past term. But while the court’s conservatives scored several major victories—most notably the Citizens United case that loosened the restrictions on corporate spending in elections, earning the justices a rare State of the Union rebuke from the president—the liberals on the court won more than their fair share of cases this year.

Ever since the 1960s, conservatives have decried the left’s embrace of broad protections for criminal defendants’ rights. In recent years, the court has drastically scaled back the ability of federal courts to second-guess state court convictions. This term, however, the court reversed course. In a case out of Florida, the court, in an opinion by Justice Breyer, expanded the time period for a criminal defendant to petition for federal court review of his state court trial in which his attorney was negligent. In another case, the justices ordered further federal court review of a state court judgment where the defendant claimed his lawyer had failed to investigate potentially mitigating evidence. In still another case, the court, over the dissent of Justices Thomas and Scalia, broadly endorsed the principle that all aspects of a criminal trial must be open to the public—again requiring the federal courts to second-guess state court decisions to close trials.

Whether its Kennedy or Roberts providing the swing vote, the liberal justices won a host of important cases this past term.

With a few exceptions, criminal defendants had a banner year at the Supreme Court. In Graham v. Florida, the court held that it was “cruel and unusual punishment” to sentence a juvenile to life in prison without the possibility of parole. Writing for the court in a case involving Enron’s former president, Jeffrey Skilling, Justice Ginsburg narrowed the federal “honest services” law to restrict the types of offenses that prosecutors could charge. Wall Street was happy, but several of the more conservative justices complained that the court did not go far enough; they would have struck down the statute in its entirety.

Fundamentalist Christians won one major case involving a memorial cross on federal land but lost another, in which the court held that a public university can require religious student groups to accept any person who wants to be a member, including gays, lesbians, and abortion advocates who don’t subscribe to religious orthodoxy.

Since the mid-1990s, the court’s conservatives have been trying to curtail Congress’ regulatory authority. But this term, Chief Justice Roberts joined the court’s liberals in a broad ruling upholding a federal law governing civil commitment of sex offenders. The decision will be a significant new hurdle to those states now challenging the recently enacted health-care law.

The court also reached “liberal” results in cases involving property rights, immigration law, discrimination suits, and securities fraud.

Even some of the cases most heralded by conservatives were mixed. The majority’s position in Citizens United, for example, was strongly supported by the quintessential liberal legal organization, the ACLU. Nor was the decision a harbinger of the end of campaign-finance law, as many progressives thought. In a decision announced on the final day of the term, the court, by an 8-1 vote, forcefully endorsed laws requiring disclosure of political activity. That decision will be difficult for challengers of the proposed DISCLOSE Act—Congress’ response to Citizens United, which relies heavily on disclosure—should that law be enacted.

In the major decision endorsing gun rights, McDonald v. Chicago, the court’s conservatives went out of their way to say that most forms of gun control are perfectly consistent with the Second Amendment. The Brady Center might have been more happy with the decision than the NRA. The court in that case also endorsed a broad reading of the Constitution’s due process clause—the very provision conservatives like Robert Bork have long condemned for empowering the court to read new, unenumerated rights into the text.

Of course, there were many additional cases decided by the court this year, some of which had conservative outcomes. But whether you think this court remains the “Kennedy Court,” as The Wall Street Journal’s Supreme Court reporter Jess Bravin says, or is now finally the “Roberts Court,” as Adam Liptak of The New York Times and Robert Barnes of The Washington Post conclude, one thing is clear: The court is not quite the extreme, right-wing court some people imagine it to be. Whether its Kennedy or Roberts providing the swing vote, the liberal justices won a host of important cases this past term.

Adam Winkler is a constitutional law professor at UCLA.