“The takeaway from the term that ended last week seems to be that by the time the Supreme Court, short-handed and stumbling in the wake of Justice Antonin Scalia’s death, finally got its act together at the end of June, it had — lo and behold — turned liberal. Count me a skeptic. Yes, of course, the two major decisions at the end of the term, University of Texas v. Fisher and Whole Woman’s Health v. Hellerstedt, had ‘liberal’ outcomes: Affirmative action in university admissions survived by a margin of a single vote, and women’s access to abortion, in states trying their best to shut down abortion clinics, survived by a margin of two. Empirical political scientists code these results as liberal. But to understand the Supreme Court under Chief Justice John G. Roberts Jr., it’s important to get beyond the binary liberal-versus-conservative label and see these and other recent cases in their full context. We have to ask what on earth the Fisher case was even doing on the court’s docket, three years after the justices had sent it back to the United States Court of Appeals for the Fifth Circuit (which had ruled for Texas) with instructions to look again and see whether the university had done enough to justify its modest use of race. Once the conservative appeals court found for a second time that the Texas plan passed muster, that would have been the end of it for any mildly liberal Supreme Court. But the conservative justices – including, at the time, Justice Scalia — wanted to teach a lesson not only to the Fifth Circuit but also, it appears in retrospect, to Justice Anthony M. Kennedy, whom they deemed too squishy for having failed in the previous decision to slam the door completely on race-conscious admissions. Surprise: This time, Justice Kennedy explained exactly why, in his view, the status quo on affirmative action should remain the law. Granted, he had never before embraced the precedents he cited. But the strategic miscalculation by justices impatient to undo those precedents hardly turns the Fisher outcome into the incarnation of liberalism.”

Source: Linda Greenhouse. “The Not-So-Liberal Roberts Court.” New York Times. July 7, 2016. http://www.nytimes.com/2016/07/07/opinion/the-not-so-liberal-roberts-court.html.


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