The Return of the Jedi: The Progressive October 2014 Term
Erwin Chemerinsky, The Return of the Jedi: The Progressive October 2014 Term, 18 Green Bag 2d 363 (2015).
Some suggest the 2014 Term of the Supreme Court was the most liberal since the Warren Court. The liberal justices were in the majority in many of the major decisions, including in declaring unconstitutional state laws prohibiting same-sex marriage, upholding tax credits under the Affordable Care Act, preserving disparate impact claims under the Fair Housing Act, permitting states to use independent districting commissions, and several others. In this essay, I review the Court’s decisions concerning marriage equality, the Affordable Care Act, criminal procedure, the First Amendment, and separation of powers. Stunningly, the liberal justices were in the majority in all but one of the cases I discuss.
Does this mean that the Roberts Court has moved to the left? Not at all. A year ago, commentary on the Court focused on the unanimity of the term; 66% of the cases were decided unanimously. This year, only 34% of the cases decided after briefing and oral argument were unanimous. Next year, the Court will be deciding cases about affirmative action, voting rights, First Amendment rights of non-union members, and likely abortion. These are all areas where Justice Kennedy is much more likely to side with the conservative justices. If this year for liberals is the “Return of the Jedi,” next year for conservatives well could be “The Empire Strikes Back.”