For Liberals: Is There Anything Encouraging About the Supreme Court?

Yes. But to be clear, much of this past term was very discouraging. Since this is widely reported—and grieved by liberals— let me point out two modest signs of encouragement.

I clearly recall when Anthony Kennedy was appointed by President Reagan. I was a recent law graduate. The appointment depressed me, much as his retirement does. Very strange, my change in attitude. 

For 17 years, he was a solid conservative vote. Suddenly, he started to be the fifth vote in major cases on gay rights and abortions.

He changed—somewhat—and it is the way he changed that liberals recall as he retires.

Chief Justice John Roberts is on a similar trajectory. Over the past 12 years, Roberts has moved steadily from the right to the center in his voting. Over the last two years, he has voted as often as Justice Kennedy as the “median justice”— a statistical measure of a justice’s vote compared to each other on a liberal-to-conservative scale.

If you are a liberal and think this is small comfort, you’re probably right. But keep in mind that Roberts was the key fifth vote to uphold the constitutionality of Obamacare (Affordable Care Act).

My hunch is that Roberts has accepted the fact that he can be a pivotal justice by siding with the remaining four liberals, just like Kennedy. What will be his issues? Will he move more to the center? Time will tell.

One other item of note: The Court this term issued only 59 signed opinions, the lowest number since 1858. 

Personally, I hope they continue on this trend to decide fewer cases—and I am serious. 

It’s time for Congress to stand up to the executive branch, whether the president is Trump, Obama, or the next person who governs by executive order. The nation will be better off with fewer major controversies settled by the Supreme Court (e.g., the Bush-Gore election of 2000).