Is the US supreme court having a liberal moment? Don't be so sure, experts say


To an outside observer, it might seem like the US supreme court is having a liberal moment, mostly thanks to one justice.

Chief Justice John Roberts – the court’s swing vote – surprised many this term by siding with the court’s left-leaning bloc and casting the deciding vote in two of the most high-stakes cases, with rulings that ensured abortion access in Louisiana and rejected Donald Trump’s bid to end protections for young undocumented immigrants.

He also sided with the liberal justices, and Neil Gorsuch, to expand LGBTQ rights in the workplace and ruled against Trump in a closely-watched case over his tax returns.

But many court watchers doubt that Roberts, a reliable conservative voice on the supreme court since he joined in 2005, is really moving in the direction of colleagues like Ruth Bader Ginsburg or Sonia Sotomayor.

“There’s absolutely no indication John Roberts has become a moderate or even a liberal,” said Jessica Levinson, a constitutional law professor at Loyola Law School in Los Angeles.

In fact, Roberts has been a critical justice in dismantling fundamental democratic protections in the US around access to the voting booth, which could have profound implications for the 2020 election. Several disputes about voting restrictions amid the Covid-19 pandemic have already reached the supreme court, and many more are expected to in the coming months.

One closely watched case, for example, will decide whether nearly three-quarters of a million Floridians with felony convictions can vote in the election. The case is already pending before the court.

Richard Hasen, a law professor at the University of California, Irvine who specializes in elections, has described Roberts as a “solid fifth vote” against expanding voting rights, along with the four other conservatives on the court.

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“He’s no swing voter in these cases, for sure,” Hasen wrote in an email.

The supreme court is expected to weigh in on voting cases as the United States still struggles with significant inequities in access to the ballot box. Many policies in place today can make it more difficult for young people and minority voters to cast a vote.

Over the last decade, Roberts has authored what many understand to be two of the most damaging rulings to voting rights in a generation. In 2013, he wrote the majority opinion in Shelby County v Holder, a decision that gutted a law mean to prevent voting discrimination against minorities. Roberts opined that the kind of racism and voting discrimination that existed in 1965, when the law was originally enacted, has been curbed.

Last year, Roberts wrote the majority opinion in another 5-4 case, Rucho v Common Cause, saying that federal courts could do nothing to stop extreme partisan gerrymandering – the practice of grouping voters in certain electoral districts to give one party an advantage over the other in elections.

Because of Roberts’ ruling, many fear that the next round of redistricting in 2021 will be more extreme, as lawmakers now know they can gerrymander for partisan gain without being sued in federal court. Justice Elena Kagan issued a scathing dissent to the ruling, saying gerrymandering could “irreparably damage our system of government”.

A handful of voting rights cases that have reached the supreme court this year related to whether limitations on voting should be eased owing to the dislocations of Covid-19, but Roberts has sided in favor of keeping restrictions in place in all of them.

Earlier this month, he sided with the court’s conservative bloc in a 5-4 decision to allow three counties in Alabama to continue to require voters to provide copies of their voter ID, and to have witnesses or notaries, in order to vote by mail. The supreme court also blocked a lower court’s ruling that would have allowed local officials to offer curbside voting, something that could have helped facilitate social distancing at the polls.

And in April, hours before the polls opened for a Wisconsin’s spring election, Roberts again sided with the court’s four conservative justices to uphold several key voting restrictions in the state. The court shortened the deadline by which voters had to put their ballots in the mail to have them counted, even though a surge of mail-in voting was expected owing to the Covid-19 pandemic.

“The majority resolved the dispute as if we are not living through a once in a lifetime global pandemic and voters are not facing unprecedented challenges in casting ballots,” Franita Tolson, a law professor at the University of Southern California who studies elections, wrote in an email. “If that was their posture in April, it is unlikely to change by November.”

Many of the upcoming cases are likely to deal with restrictions around absentee voting, and on seemingly technical disputes that could have huge practical implications, such as over prepaid postage, ballot receipt deadlines, and signature matching practices.

Roberts is unlikely to side with liberal colleagues in such disputes, said Leah Litman, a law professor at the University of Michigan.

“I see absolutely no chance of that, given his votes in the Wisconsin and Alabama cases, as well as his history in voting rights disputes,” she said.

Despite Roberts’ record on the issue, Deuel Ross, an attorney at the NAACP Legal Defense Fund, said he was still hopeful the court would recognize the need to expand voting rights owing to the unique obstacles posed by Covid-19.

“Justice Roberts has not shown himself in the past to be particularly sympathetic to voting rights claims,” he said. “My hope is the court will be more sympathetic to those voters who are put it in a really impossible choice between choosing to go to a crowded polling place and having the option to vote at home without having to jump through additional hurdles.”





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