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Is the Roberts Court Becoming Liberal (SPOILER: No.)



Today’s atrocious death penalty and EPA opinions — more on those shortly — should end this meme quickly, but while last week was a good one we really shouldn’t overstate the extent to which last week was a liberal triumph:

On same-sex marriage, then, no qualification is necessary. It’s a flat-out liberal win, comparable to the great landmarks of the Warren Court. With respect to the two other big cases of the week, however, the questions are more complicated.

In King v. Burwell, the Supreme Court turned away the latest ad hoc legal challenge to the Affordable Care Act, with both Chief Justice Roberts and Justice Anthony Kennedy joining the court’s four Democratic nominees to produce a 6-3 majority. The court determined that tax credits would be available on health care exchanges established by the federal government, rejecting the bizarre argument that Congress went to the trouble of setting up a federal backstop that was designed to fail. It’s hard to overstate the importance of this opinion, which will save millions of people from being denied health insurance and thousands of people from unnecessary death.

But, in another sense, this case isn’t really much of a liberal “win.” The case was premised on bad statutory construction that was used to concoct an utterly preposterous theory of what the ACA meant. In a sense, the fact that conservatives got the court to take the case and three justices to buy the argument shows just how conservative the court is. Had liberal activists, say, gotten three votes at the Supreme Court for a theory that the Bush tax cuts violated the Equal Protection Clause, that really wouldn’t be a sign that conservative thought was ascendant at the Supreme Court.

More at the etc. I will add that you probably want to do a blood pressure test before reading Scalia’s EPA opinion if you’ve read the King dissent.

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