The Supreme Court’s term has ended with two supreme-sized rulings, one affirming a right to same-sex marriage, the other upholding the Affordable Care Act. Overall, the conventional rap on the term has been that it was a decidedly liberal year for the conservative Roberts court.
That’s true but simplistic, according to Stuart Taylor Jr., whom we brought in to decode the court’s most recent pronouncements on this week's podcast. Taylor graduated from Harvard Law School and went on to cover the Supreme Court for the National Journal, The New York Times, Newsweek, The American Lawyer and other publications. He's also the co-author of “Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It” and “Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Fraud.”
Taylor’s take is that the Chief Justice John Roberts’ court is much more aligned with mainstream public opinion than people give it credit for. There are four consistent conservative justices and four liberals, and Justice Anthony Kennedy wanders between camps. The end result over the years has been a trail of opinions that well represent public opinion.
But a certain partisanship on the court, Taylor says, is inevitable.
The Constitution simply does not have direct and obvious guidance on many of the issues and social conflicts the court has to adjudicate in the modern world: same-sex marriage, abortion, lethal injections and so forth. The cases that come to the court are close calls, with strong arguments on every side. All the justices believe their opinions are the most faithful to the Constitution. Ultimately, Taylor argues, the justices’ broader views on policy and political philosophy tip the scales.
And with the legislative and executive branches so often tied up in partisan and petty knots, the judiciary ends up as the final voice more often than ideal, as with Obamacare this year. All these are reasons why the Supreme Court may be the most intellectually interesting political game in town.