NYTimes Editorial: The Activist Roberts Court, 10 Years In:
What is the most useful way to understand the direction of the Supreme Court 10 years into the tenure of Chief Justice John Roberts Jr.? After a series of high-profile end-of-term rulings that mostly came out the way liberals wanted, it is tempting to see a leftward shift among the justices.
That would be a mistake. Against the backdrop of the last decade, the recent decisions on same-sex marriage, discrimination in housing, the Affordable Care Act and others seem more like exceptions than anything else. If they reflect any particular trend, it is not a growing liberalism, but rather the failure of hard-line conservative activists trying to win in court what they have failed to achieve through legislation.
And even when a majority of the justices rejected conservative arguments, the decision to hear those cases in the first place showed the court’s eagerness to reopen long-settled issues. For example, in last month’s ruling on the Fair Housing Act of 1968, the court held 5 to 4 that discrimination could be illegal under the law even if there was no evidence that it was intentional. This might seem to be a “liberal” result, except that 11 federal appeals courts had agreed on this reading for decades. There was no legal dispute, in other words, only the persistent efforts of some justices to reverse accepted law because they didn’t like it.
In this light, “the string of liberal ‘victories’ represents disasters averted, not new frontiers discovered,” wrote Garrett Epps, the Supreme Court correspondent for The Atlantic.