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Conservatives Won Most of Landmark Supreme Court Term’s Big Cases

Anthony Kennedy

Conservatives racked up win after win during the Supreme Court term that ended Wednesday, affirming a majority that looks more secure than ever.

Rarely did the liberal wing of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan carry the day on a major case. The success in holding the conservative justices to together was crystallized in a startling observation by South Texas College of Law – Houston professor Josh Blackman.

“So far this term, Justice [Anthony] Kennedy has not joined the four liberals on a 5-4 decision — not a single one,” he told LifeZette a day before the justices issued their last decisions of the term.

With the court’s 5-4 decision [1] holding that public employee unions cannot force nonmembers to share the costs of collective bargaining, the court ended the term with 20 cases decided by votes of 5-4.

In none of them did Kennedy provide the deciding vote for liberals. Instead, he sided with the other conservatives in 15 of those cases. It is a remarkable result for a justice usually considered the swing vote on the high court.

In raw numbers, Chief Justice John Roberts was the swing vote during the term. He provided the deciding vote on two 5-4 rulings that went with the liberals. Even Justice Neil Gorsuch voted once with the four liberals in a 5-4 case. (The other 5-4 cases featured unusual lineups with conservatives and liberals voting together).

“It shows, maybe, the polarization of the courts,” said Joseph Tartakovsky, a former Nevada deputy solicitor general and author of “The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law.”

Kennedy stamped a loud exclamation point on the end of the term Wednesday with his announcement that he intends to retire [2] after the end of next month. That gives President Donald Trump the opportunity to shift the court solidly to the right on issues in which Kennedy has tended to line up with the liberal minority.

But a Kennedy replacement, no matter how conservative, would not have made much difference in this term.

“It’s hard to make generalizations from any one term … Some of that is really a function of what cases get chosen,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network.

The just-completed court term confirmed one other thing: Conservatives got what they hoped for from Gorsuch when Trump elevated him from the 10th U.S. Circuit Court of Appeals.

“If anything, they’re getting more than they hoped for,” said John Eastman, founding director of the Claremont Institute’s Center for Constitutional Jurisprudence.

“Gorsuch has been a terrific choice. He kept his commitment that he made that he’d be fair and interpret the Constitution, as written.”

In addition to reliably voting with the conservative wing, Eastman said, Gorsuch has been an intellectual force in pushing the court to take a more skeptical view of the power of bureaucrats to interpret and implement law.

Eastman cited a pair of cases that did not get as much media attention as some of the higher-profile rulings of the term. In Encino Motors v. Navarro, the court ruled that service advisers at car dealerships are exempt from the Fair Labor Standards Act’s overtime-pay requirement. In Lucia v. Securities and Exchange Commission, the court ruled that administrative law judges are subject to the Constitution’s appointments clause.

“Gorsuch has been a terrific choice,” Severino said. “He kept his commitment that he made that he’d be fair and interpret the Constitution, as written.”

Related: Kennedy Retirement Gives Trump Chance to Solidify Conservative Bloc [2]

Here is a look at some of the most closely watched cases of the term:

PoliZette senior writer Brendan Kirby can be reached at [email protected] [11]. Follow him on Twitter [12].