Conservative hopes this session were high. After-all, the cases on the docket ranged from abortion to unions to immigration reform. With a 5-4 majority on the Court it seemed conservatives could shift the legal landscape of this country sharply to the right.
What a difference six months makes. In February, conservative lion Antonin Scalia died and left the court with a 4-4 split. Or more accurately, a 3-4-1 split. Suddenly, the dreams of conservatives upending decades of liberal precedence were up in the air.
Still, there was hope. In the form of swing vote Anthony Kennedy and probably the most conservative liberal member on the Court, Stephen Bryer. Also, the Roberts Court had been known for its caution in crafting sweeping rulings and this limited any damage that could occur to conservative causes if things went south.
With the term over it is clear just how much the death of Scalia has turned the court to the left. The 4-4 deadlock on union dues allowed the 9th Circuit Court’s ruling on dues to continue unabated. This was the first major debate for conservatives of the term but it would not be the last.
In a 4-3 decision, with Kennedy siding with the court’s liberals, the affirmative action policies of the University of Texas-Austin were upheld. But, by far, the biggest defeat was the 5-3 decision in Whole Women’s Health vs. Hellerstedt. The ruling, penned by Bryer, shot down TX and 2 other states restrictions on abortion. Kennedy, known for his moderate positions on the issue, had again, created a liberal majority. Worse, Kennedy again sided with the court’s 4 liberals to deny an appeal from a group of Washington state based pharmacists who objected to being forced to provide emergency contraception more recently.
Without Scalia on the court it has inevitably drifted left. But, it has only drifted as far left as Kennedy has wanted it to go. A full-bore liberal Kennedy is not. Remember, he sided with conservatives in Citizens United, tried to overturn Obamacare, he issued an emergency stay on the White House’s Clean Air Plan and has sided with conservatives on every campaign finance case. So calling Kennedy a liberal is a stretch.
It is more accurate to say he is a libertarian/moderate on social issues and a conservative on the scope of governmental power. For example, in the rulings regarding affirmative action and abortion, the rulings were tailored specifically to the cases. This means that while liberals may be hailing the rulings as giving them precedent to continue such policies or limit restrictions on abortions that is all they do. They simply stake a line in the ground saying that their are limits to religious freedom, abortion restrictions and the like. Indeed, Kennedy joined with the court’s then 4 conservative justices in 2013 to uphold Michigan’s 2012 vote banning affirmative action policies.
Of course, this is not what conservatives envisioned with majorities in Congress. Arguably, the 2016 election could have the biggest impact on the court. If Clinton is elected it is very likely she could replace Ginsburg as well as Kennedy or a conservative justice. The line staked in the ground via recent rulings would not be viewed as precedent for how far states can go to limit abortions or preserve affirmative action, but rather as a starting point to expand them exponentially.
Trump, if for no other reason he lacks ideological underpinnings of any type, could probably be swayed into appointing conservative justices. They probably would not be pure on every issue but more in line with the mold of Roberts vs. Alito or Thomas. Conservatives could probably live with that trade-off.