The headline from today’s major rulings involving the Affordable Care Act and the Fair Housing Act is that the supposedly “conservative” Roberts Court continues to produce a remarkably “liberal” series of decisions. The surprising success of the Court’s left-leaning justices this Term had been noted even before today, and most observers believe the liberals are still awaiting their most significant victory in the same-sex marriage case.
Although defenders of the ACA and of aggressive federal civil rights enforcement are surely walking with a skip in their step after today’s announcements, it is worth noting that the liberal victories at the Court today are rather less than they might appear. Both cases only got to the Court because conservative justices are interested in knocking down liberal legal achievements. It says something about the ideological climate of the day that so many liberal court victories are defensive victories: they preserve the status quo; in some cases, victory means minimizing losses. This is pretty much where we are today when it comes to abortion law, affirmative action, and many other areas of civil rights. There is something misleading about proclaiming a Court “liberal” because it agrees to hear conservative legal challenges—challenges liberals desperately wanted to go away—and then stays its hand in the end.
The great exception to the foregoing is, of course, the gay rights cases of recent years. These cases have transformed the legal status quo and have helped move the nation in a new direction. When the Court strikes down prohibitions on same-sex marriage, as they seem likely to do either tomorrow or Monday, the Roberts Court will declare victory in a battle liberals have sought to wage. On this day, the Roberts Court will truly defy its conservative label.