Jurisprudence

Is the Supreme Court More Liberal Than Obama?

One of the administration’s closest allies was Clarence Thomas.

Justice Stephen Breyer, Justice Ruth Bader Ginsburg, and President Barack Obama.

Photo illustration by Lisa Larson-Walker. Photos by Jason Reed/Reuters, Kevork Djansezian/Getty Images, Alex Wong/Getty Images.

The Supreme Court just ended its most liberal term in memory. From marriage equality to health care to housing discrimination to legislative districting, the court decided a number of high-profile cases in ways favored by the political left. There was no better reflection of the liberal rout than the photos of President Obama joyously bear-hugging staff members upon hearing of the health care ruling.

The president’s glee overshadows the relatively poor success rate the administration had this year at the Supreme Court. While the executive branch historically wins 60 to70 percent of its cases in the high court, this year the administration won only 38 percent. The court ruled against the administration in 13 of the 21 cases in which the federal government was a party, including Monday’s important decision curtailing the Environmental Protection Agency’s authority to regulate pollution from power plants.

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The administration’s low win rate might seem to be the inevitable result of ideological disagreements between a liberal president and a conservative court. Yet the data suggest a more surprising story: The liberal justices voted against the Obama administration more often than the conservatives did.

The two justices who cast the most votes against the administration this term were Justices Ruth Bader Ginsburg and Stephen Breyer, each opposing the administration in 71 percent of the cases. Justice Sonia Sotomayor isn’t far behind, voting against the administration 67 percent of the time. Who voted the most with the administration? Justices Clarence Thomas and Anthony Kennedy, who each sided with the administration more often than not (in 52 percent of the cases).

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A closer look at this term’s lineup suggests a reason: The administration was far more conservative on criminal justice issues than the Supreme Court was. Although a majority of the justices upheld Oklahoma’s right to use unreliable drugs for lethal injections, Justice Breyer’s critique of the death penalty—coupled with Justice Kennedy’s critique of solitary confinement in a case last week—more accurately captures the mood of the Supreme Court’s criminal justice decisions this year.

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The court rejected the administration’s argument that fishermen can be prosecuted under the Sarbanes-Oxley Act for destroying illegal catch; that people can be prosecuted for criminal threats on Facebook without proof of intent; that police can extend a traffic stop to bring in drug-sniffing dogs; that convicts can’t sell their firearms; that prosecutors don’t have to prove a defendant knew he had a controlled substance analogue; and that a provision of the Armed Career Criminal Act wasn’t unconstitutionally vague.

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Add in the Supreme Court’s expansion of whistleblower protections and its refusal to allow the Board of Immigration Appeals to deport someone for unspecified drugs—both contrary to the administration’s arguments—and you have a remarkable number of cases this term promoting more liberal, less law-and-order outcomes than sought by the administration. The dissenters in these cases were an unlikely line-up of administration allies, in the main Justices Antonin Scalia, Samuel Alito, Thomas, and Kennedy.  

When criminal justice cases are included in the assessment, the Supreme Court was in some ways more liberal than the Obama administration this term. 

If the administration had taken less conservative positions on criminal justice cases, the president would likely have had a much better win rate overall. Of course, as the photos from the Oval Office remind us, no one in the administration is complaining. 

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