Must-Read: Scott Lemieux: Why Did Obama Do so Well at the Supreme Court?

Must-Read: Scott Lemieux: Why Did Obama Do so Well at the Supreme Court?: “The last week of the Supreme Court’s last full term of the Obama era…

…was a microcosm of his administration’s relationship with the Roberts Court…. In a one-sentence opinion, the Supreme Court left in place a lower court ruling that the president’s DAPA immigration program… was illegal, meaning that it will almost certainly not be implemented before President Obama leaves office. Still, the news… was good. A surprising majority opinion upheld the University of Texas’s affirmative action program, and a somewhat less surprising majority opinion struck down Texas’s draconian abortion statute…. Looking at the Supreme Court’s major decisions during the Obama administration as a whole, the story is similar. The last time a Democratic president successfully passed an ambitious progressive agenda with a Republican-controlled Supreme Court, the result was a constitutional crisis…. [But] the Roberts Court left Obama’s domestic agenda mostly intact, while delivering the Democratic coalition some major victories it would not have been able to win any other way, most notably on abortion and LGBT rights.

One interpretation of the Court’s behavior is that it is isolated from the pressures that have caused the other institutions of American politics to become cripplingly polarized. This interpretation, however, is probably wrong. The relative moderation of the Roberts Court is likely the last gasp of the previous partisan order…. There have been plenty of… major conservative judicial victories during the Obama era, most notably the gutting of the most important civil rights statute since Reconstruction in the 2013 decision Shelby County…. Even worse than the result of the case was the shoddiness of Roberts’s opinion…. Since then, many Republican-controlled states have wasted little time passing discriminatory voting restrictions, undercutting the Court’s conclusion that the strong enforcement of the Voting Rights Act was no longer necessary. While the Roberts Court has permitted the states to engage in a wide array of vote suppression tactics on the one hand, it has prevented state and federal governments from passing campaign finance restrictions on the other. And in lower-profile cases, the Court has consistently ruled against the interests of consumers and the rights of employees when interpreting federal law….

With the admittedly crucial exception of Sebelius, the liberal victories of the Roberts Court were due to one man: Anthony Kennedy…. Since early in the Nixon administration, the median vote on the Court on the most politically salient issues has been a Republican, but a moderate, country-club Republican: Potter Stewart, Lewis Powell, Sandra Day O’Connor, and now Kennedy. The issue going forward is that this kind of Republican is rapidly going extinct…. Future Republican nominees are going to be in the mold of Samuel Alito and Roberts….

The Supreme Court has historically been a centrist institution… [because] elites—from whose ranks Supreme Court justices are generally chosen—tend to have less polarized views than ordinary members of the party…. A decade from now, the Supreme Court will almost certainly not be controlled by either a moderate Republican like Anthony Kennedy or a heterodox liberal like Byron White…. The median vote on the Court will almost certainly be a conservative in the mold of Alito or Roberts, or a liberal in the mold of Ruth Bader Ginsburg…. This polarization is not symmetrical…. Alito is further to the right than Ginsburg is to the left…. Could anything stop the Court from becoming as polarized as the rest of the political order? If current party polarization persists, probably not…. In the short term… whether the Court will be controlled by a liberal Democratic faction or a conservative Republican one… means that the presidential and Senate elections in November will be high-stakes contests indeed.