Sorry, liberals: The Supreme Court is still plenty conservative

Liberals have not had a great deal to celebrate when it comes to the Supreme Court led by Chief Justice John Roberts. But last week, liberals won three high-profile victories in cases involving the Affordable Care Act, the Fair Housing Act, and same-sex marriage. Still, while these cases are very important, it's also important to keep things in perspective. This remains a very conservative court, and this term is likely to prove an outlier.

Liberals fared unusually well this year. The court has had a Republican-nominated chief justice and (more importantly) median vote since early in the Nixon administration, and as Alicia Parlapiano, Adam Liptak, and Jeremy Bowers demonstrated recently in The New York Times, you would have to go back that far to find another term in which liberals did just as well. Whether you use quantitative or qualitative measures, this has been a standout year for liberals when it comes to the Supreme Court.

There are victories, however, and there are victories. Some of the court's decisions this term were real liberal victories — but others demonstrated conservative strength even if conservative litigators failed to achieve their final objectives. And the court's decisions this week — striking down an important EPA regulation and sanctioning a lethal injection drug that has resulted in botched executions — only further undermined conservative claims that the court has become a source of liberal tyranny under Roberts.

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The outright liberal victory of the term, needless to say, was the Supreme Court's third landmark decision on gay and lesbian rights, Obergefell v. Hodges. Some liberals might quibble with some of the loose ends Justice Anthony Kennedy left in equal protection law, but his opinion represents an unquestionable human rights triumph. Making same-sex marriage legal in all 50 states is an important liberal objective that would have been unthinkable even a decade ago.

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.

To the extent that this refusal to wreck the exchanges was anything more than a defensive win, it's in the fact that Roberts' opinion was much stronger than might have been expected. Roberts did not decide the case by deferring to the discretion of the IRS, which would have permitted a future Republican president to withdraw the credits unilaterally. Instead, Roberts found that the ACA provided tax credits on the federal exchanges, full stop. Roberts has, at least, made it clear that the use of increasingly weak legal arguments to attempt to destroy the ACA are over.

On the same day that the court handed down King, it issued Texas Department of Housing and Community Affairs v. Inclusive Communities Project. And like the ACA case, it represents a defensive, rather than an offensive, win for progressives. The court — with Kennedy joined by the four Democratic nominees — maintained that the Fair Housing Act permits the use of "disparate analysis" impact in fair housing claims. That is, plaintiffs may be able to show they have been discriminated against without having to show intentional discrimination, which is often enormously difficult to prove. In some cases, policies that produce discriminatory effects will be illegal even if intentional discrimination cannot be proven.

This is an important, and somewhat unexpected, victory. But at best it merely retained the status quo; again, a more liberal court would probably have not even heard this case. And Kennedy's opinion made it clear that it will be very difficult to win on disparate impact grounds going forward.

So while this was a good term for liberals, evidence of the court's fundamental conservatism was evident even in some of the big victories. Next July, it's conservatives rather than liberals who are likely to be celebrating the recently concluded term.