WASHINGTON — The Supreme Court term that is nearing its end shows how silence can signal success.
With a notable paucity of dissents and not a single word to say about same-sex marriage, health care or housing discrimination, the court’s liberal justices prevailed in almost every important case in recent months.
“It looks like the ground under First Street is slightly tilted to the left,” said Carrie Severino, a former law clerk to Justice Clarence Thomas and a conservative commentator, referring to the court’s address.
The four liberal justices – Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor – were content to sign on to Chief Justice John Roberts’ opinion that preserved a key piece of President Barack Obama’s health care overhaul.
They similarly joined Justice Anthony Kennedy in his clarion-call opinion that gave same-sex couples the right to marry across the country and in another 5-4 ruling that upheld an important tool used by the Obama administration to win hundreds of millions of dollars in settlements of claims of housing discrimination.
Their conservative colleagues criticized each other – Scalia even asserted in his same-sex marriage dissent that California native Kennedy is not a true Westerner – and thundered on about the unchecked power of unelected, life-tenured judges. But the liberals spoke not a word.
And there were more victories in cases divided mainly along ideological lines.
The justices sided with a woman who claimed her employer discriminated against her because she was pregnant. They struck down a provision that would have allowed Americans born in Jerusalem to list Israel as the country of birth on their U.S. passports. They upheld regulations limiting the ability of candidates for elected judgeships to personally solicit campaign contributions. They tossed out a Los Angeles ordinance giving police the right to inspect hotel guest registries at a moment’s notice.
Early in Roberts’ tenure as chief justice, Breyer let his frustrations show at the end of a conservative-dominated term when he said “so few have so quickly changed so much.”
This year, Breyer did not dissent from any opinion until mid-June and has so far disagreed with the outcome in only a handful of cases.
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It’s possible that those cases – involving lethal injection, congressional redistricting and environmental regulations – could produce conservative majorities, but that would not alter the overall view of the term.
Jim DeMint, the president of the Heritage Foundation and a former Republican senator from South Carolina, said in an email to supporters, “Even the Supreme Court, which like the president and the Congress is obliged to uphold the Constitution, has in the span of two days issued rulings on marriage and Obamacare that undermine the rule of law and ignore the Constitution.”