U.S. Supreme Court

Why are liberal justices signing opinions that could be ticking conservative time bombs?


Are liberal justices savvy or suckers?

That’s the question asked by University of California at Irvine law professor Richard Hasen, who notes that some of the court’s liberals joined majority “time bomb” opinions this term that could be used to move the court further to the right in future cases. In an essay for Slate, Hasen concludes the liberal justices “might be savvier than they first appear to be.”

Justices Sonia Sotomayor and Stephen G. Breyer were part of the seven-justice majority in Fisher v. University of Texas when the court said strict scrutiny should be used to evaluate a white student’s challenge to race-based admissions. The opinion “was essentially a punt, putting off for another day the future constitutionality of affirmative action programs,” Hasen wrote, but “it seemed to impose a very tough hurdle for any program’s constitutionality in the future.”

Similarly, all four liberal justices signed the majority opinion in Arizona v. Inter Tribal Council striking down Arizona’s requirement that would-be voters submit proof of citizenship. Hasen sees the opinion as a short-term victory for the federal government that could nonetheless be used to shift power back to the states. In an analysis for the Daily Beast, Hasen says Scalia distinguished between Congress’s broad power to set the manner of elections and its lack of power to set voter qualifications, an issue for the states.

Hasen suggests the liberals could have these motives:

1) The liberals agree to join opinions that avoid deciding the constitutional question, buying more time for laws that could eventually be struck down.

2) The liberals are trying to run out the clock, hoping that a future Democratic president will replace one of the court’s conservatives.

3) The liberals are trying to highlight the dangers of the Roberts court.

The liberals “are playing a game of three-dimensional chess and we cannot see the entire board,” Hasen writes.

Related coverage:

New York Times: “Roberts Pulls Supreme Court to the Right Step by Step”

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