http://thehill.com/regulation/court-battles/246352-right-sees-leftward-tilt-in-roberts-supreme-court-era By Peter Schroeder and Lydia Wheeler - 06/27/15 06:00 AM EDT
Supreme Court rulings affirming ObamaCare and gay marriage are unnerving the right, which sees a leftward tilt in the Chief Justice John Roberts era.
To be sure, the court has issued right-leaning rulings since Roberts was confirmed in 2005, perhaps most notably by opening up campaign coffers to private organizations in Citizens United v. FEC, and striking down a section of the 1965 Voting Rights Act.
But in a series of other rulings, the court has issued decisions cheered by the left that have disappointed conservatives and soured them on Roberts.
“People had felt that the Roberts court might be one of the most conservative courts in recent history,” said Paul Rothstein, a Georgetown Law professor. “That expectation and belief has been a little bit beyond the mark.”
The court’s early direction under Roberts appeared in line with expectations.
In 2010, a New York Times analysis of the first five years of the Roberts Court found it to be one of the most conservative in decades, issuing conservative opinions 58 percent of the time.
But even before Justice Anthony Kennedy issued the majority decision on Friday affirming same-sex marriage, the Roberts Court in 2015 issued liberal rulings in 56 percent of cases, making it one of the most left-leaning years for the court in decades, according to the Times.
Some of the recent decisions have highlighted a disturbing trend for conservatives.
While the court’s four liberal justices have ruled in unison on gay marriage, ObamaCare, discrimination in housing and other issues, conservatives on the court have been split.
While Justices Antonin Scalia, Clarence Thomas and Samuel Alito have generally aligned on the right, Roberts wrote both ObamaCare decisions and Kennedy has been a frequent swing voter.
Even Thomas broke with the other four conservatives last week in a ruling that said Texas could block people from putting the Confederate flag on license plates.
Given that Kennedy and Roberts were nominated to the court by GOP presidents, Ronald Reagan in the case of the former and George W. Bush in the latter, their surprise decisions have left a sour taste.
“They lied to the presidents who appointed them. Is there any doubt in anyone's mind what Ronald Reagan wanted when he picked Anthony Kennedy?” said Matt Schlapp, president of the American Conservative Union. "I don't trust the court. I don't trust John Roberts to do the right thing. I definitely don't trust Anthony Kennedy to do the right thing.”
Some legal experts say the court only appears more liberal because the big cases would have never come before the court if it weren't so conservative.
“The only reason they heard the Obamacare case is because we have some really deeply conservative justices who thought this could be used as mechanism to strike it down,” said Kent Greenfield, a law professor and Dean's Research Scholar at Boston College. “With same-sex marriage, they've been avoiding taking the case.”
But a ruling this week on fair housing shows it is not just the high-profile political cases where a conservative justice can surprise.
Jim Ryan, head of the civil rights division for the New York-based law firm Cullen and Dykman, pointed to Thursday’s decision, where the court said housing discrimination cases can be based on “disparate impact.” This means that statistical discrepancies among different groups may be the grounds for discrimination claims, even without any overt evidence of deliberate unfair treatment.
Such a principle has been central to several discrimination cases built by the Obama administration, but hotly contested by business groups as an unfair and unreliable metric.
Ryan said the decision came out of nowhere.
“It's probably the most surprising decision of the term,” Ryan said. “In the Fair Housing Act, there is not a written provision on disparate impact, so the court read one into it. Legally, I was dumbfounded by it.”
Experts say it is too simplistic to simply label the Roberts court as conservative or liberal.
Rothstein said the court has typically shown a conservative bent when it comes to business and the economy, and that it also has leaned reliably right on matters like voting rights and affirmative action, while skewing left on many social issues.
Rather, many court watchers say perhaps the best way to analyze the Roberts court, and Roberts in particular, is from an institutional perspective. Oftentimes, the chief justice comes down on an issue with a goal towards protecting institutions, including his own.
“The best description I've heard of [Roberts] lately is he's showing himself to be an institutionalist. He wants institutions to function,” said Jon Gould, a professor at American University. “Anyone who thinks John Roberts is a moderate is wrong, but there's institutional conservatives and radical conservatives. I think he's showing himself to be an institutional conservative.”
Gould pointed to this week's major rulings as an example. In the ObamaCare case, Roberts opted not to blow up the healthcare law by throwing out subsidies central to the program. And on same-sex marriage, Roberts wrote a dissenting opinion saying he wanted the matter left to states, rather than dramatically overhauled by a court ruling.
Roberts is also intensely focused on ensuring the Supreme Court can stay above the partisan fray. After the court split down party lines to determine the presidency in Bush v. Gore in 2000, experts say Roberts has been well aware of the political implications of its rulings.
“He was worried that the court was getting a political image,” said Rothstein. “I think to some extent, he himself has wanted to kind of countermand that where he could. So that's why we have been seeing some flexibility in his views.
“I think, in a way, Justice Roberts's voting for healthcare was motivated by that notion ... to give the court a more balanced image,” he added. “I think he knew he was going to vote against gay marriage, and he wanted to kind of have the dichotomy of 'Look, I don't always vote conservative.’”
Greenfield, however, has a different theory.
“On the cases that call for straightforward legal analysis, he gets those right as often as not,” he said. “The cases that require him to use something more to guide him to the right decision, he’s likely to get it wrong because he doesn’t have the thoughtfulness that Kennedy has in regard to gay rights.”
