WASHINGTON — The Supreme Court term that is nearing its end shows how silence can signal success.
With a notable paucity of dissents and not a single word to say about same-sex marriage, health care or housing discrimination, the court’s liberal justices prevailed in almost every important case in recent months.
“It looks like the ground under First Street is slightly tilted to the left,” said Carrie Severino, a former law clerk to Justice Clarence Thomas and a conservative commentator, referring to the court’s address.
The four liberal justices – Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor – were content to sign on to Chief Justice John Roberts’ opinion that preserved a key piece of President Barack Obama’s health care overhaul.
They similarly joined Justice Anthony Kennedy in his clarion-call opinion that gave same-sex couples the right to marry across the country and in another 5-4 ruling that upheld an important tool used by the Obama administration to win hundreds of millions of dollars in settlements of claims of housing discrimination.
Their conservative colleagues criticized each other – Scalia even asserted in his same-sex marriage dissent that California native Kennedy is not a true Westerner – and thundered on about the unchecked power of unelected, life-tenured judges. But the liberals spoke not a word.
And there were more victories in cases divided mainly along ideological lines.
The justices sided with a woman who claimed her employer discriminated against her because she was pregnant. They struck down a provision that would have allowed Americans born in Jerusalem to list Israel as the country of birth on their U.S. passports. They upheld regulations limiting the ability of candidates for elected judgeships to personally solicit campaign contributions. They tossed out a Los Angeles ordinance giving police the right to inspect hotel guest registries at a moment’s notice.
Early in Roberts’ tenure as chief justice, Breyer let his frustrations show at the end of a conservative-dominated term when he said “so few have so quickly changed so much.”
This year, Breyer did not dissent from any opinion until mid-June and has so far disagreed with the outcome in only a handful of cases.
Three cases remain undecided with the court scheduled to meet Monday for the final time until the fall.
It’s possible that those cases – involving lethal injection, congressional redistricting and environmental regulations – could produce conservative majorities, but that would not alter the overall view of the term.
Jim DeMint, the president of the Heritage Foundation and a former Republican senator from South Carolina, said in an email to supporters, “Even the Supreme Court, which like the president and the Congress is obliged to uphold the Constitution, has in the span of two days issued rulings on marriage and Obamacare that undermine the rule of law and ignore the Constitution.”
There’s a game Supreme Court observers play that is best described as, “Whose court is it, anyway?” The answer in recent years: either Roberts’ or Kennedy’s.
It may be more accurate to say that it’s virtually impossible to get anything done at the Supreme Court without either of those justices on your side.
It happened just once this term, when Justice Clarence Thomas and the liberal four sustained Texas’ refusal to issue a license plate bearing the Confederate battle flag.
At least since Justice Sandra Day O’Connor’s retirement in 2006, Kennedy often has been the decisive vote in closely contested cases. In addition to cementing his legacy, 20 years in the making, as the court’s champion of gay rights, Kennedy has sided with the liberals in limiting the application of death sentences and affirming the right of Guantanamo detainees to court hearings.
His opinion in the housing discrimination case aside, he more typically votes with the conservatives in civil rights cases involving race. Kennedy also was part of conservative majorities in landmark cases in favor of gun rights and striking down campaign finance restrictions.
Roberts has been on the same side in all these cases, but his single, momentous vote in 2012 to uphold the health care overhaul has altered perceptions of him. That was the first time that Roberts joined with the four liberals in a 5-4 ruling.
He did so again in the case about judges and campaign contributions. On Thursday, Roberts and Kennedy voted in favor of the nationwide tax-credit subsidies that underpin the health care law.
“One thing that’s clear about Roberts is that he is very concerned about the court as an institution, its perception and its institutional legitimacy,” said Brianne Gorod, appellate counsel at the liberal Constitutional Accountability Center.
Roberts, though, was in dissent in the same-sex marriage case and chastised Kennedy for overstepping judicial authority.
Severino was struck by Roberts’ language. “I found it a little ironic to read some of his criticism in dissent about the court overstepping its authority when I feel like that’s exactly what he was doing the day before,” in the health care case, Severino said.
Most court watchers are unwilling to read too much into the results of one term because they are so dependent on the mix of cases that are before the justices.
“It seems fair to say that the court tilted in a more liberal direction this term,” said veteran Supreme Court lawyer Carter Phillips. “Whether that reflects a real shift or just a blip is anybody’s guess.”