After 45 years with a conservative majority, the Supreme Court appears to be entering a very different era.
The major rulings of this just-completed Supreme Court term show there are no longer five votes for a conservative result – a historic shift. From the time President Nixon’s fourth court nominee was confirmed in 1971 until Justice Antonin Scalia’s death in February, there have always been five ideologically conservative Republican appointees on the bench. No longer. Indeed, if Hillary Clinton is elected president in November, a liberal majority may dominate the court for decades to come.
The decisions over this term might have looked like a mixed bag of liberal and conservative outcomes. But a clear pattern was at work. When Justice Anthony M. Kennedy joined with Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, they formed a liberal majority. When Kennedy voted with the conservative bloc – Justices Clarence Thomas and Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. – the court almost always split 4-4.
When there is a deadlock, the lower court ruling is affirmed, but without setting any Supreme Court precedent. So some ties upheld a liberal result and others a conservative one. Still, the conservative justices only rarely gained a fifth vote for their position.
In key cases, Kennedy joined the liberals. The court, 5-3, declared unconstitutional a Texas law that imposed onerous restrictions on abortion providers. In Fisher v. University of Texas at Austin, Kennedy wrote the majority opinion upholding the university’s ability to consider race and ethnicity in admissions.
The only major case in which the conservatives prevailed was Utah v. Strieff, which held that evidence obtained after an illegal police stop is admissible in court if the police discover an outstanding warrant for the person’s arrest. Breyer joined Thomas, Roberts, Kennedy and Alito.
But Utah v. Strieff was the exception in a term in which conservatives time and again could not secure a fifth vote. This could be the dynamic for years to come. In addition to Scalia’s seat, the next president probably will fill several vacancies. Since 1960, justices have left the bench at an average age of 79. Ginsburg, Kennedy and Breyer will be 79 or older in 2017. The next president, especially if he or she is a two-term president, probably will have several picks for the high court.
After 45 years of a conservative majority, we’ve just gotten a glimpse of what the next era on the court could look like. No longer are there five conservative votes on abortion and affirmative action. By next year there may be five liberal votes on issues such as campaign finance, the death penalty and gun control.
Chemerinsky is the dean of the University of California at Irvine School of Law.