Supreme Court rulings affirming ObamaCare and gay marriage are unnerving the right, which sees a leftward tilt in the Chief Justice John Roberts era.
To be sure, the court has issued right-leaning rulings since Roberts was confirmed in 2005, perhaps most notably by opening up campaign coffers to private organizations in Citizens United v. FEC, and striking down a section of the 1965 Voting Rights Act.
But in a series of other rulings, the court has issued decisions cheered by the left that have disappointed conservatives and soured them on Roberts.
“People had felt that the Roberts court might be one of the most conservative courts in recent history,” said Paul Rothstein, a Georgetown Law professor. “That expectation and belief has been a little bit beyond the mark.”
The court’s early direction under Roberts appeared in line with expectations.
In 2010, a New York Times analysis of the first five years of the Roberts Court found it to be one of the most conservative in decades, issuing conservative opinions 58 percent of the time.
Some of the recent decisions have highlighted a disturbing trend for conservatives.
While the court’s four liberal justices have ruled in unison on gay marriage, ObamaCare, discrimination in housing and other issues, conservatives on the court have been split.
While Justices Antonin Scalia, Clarence Thomas and Samuel Alito have generally aligned on the right, Roberts wrote both ObamaCare decisions and Kennedy has been a frequent swing voter.
Even Thomas broke with the other four conservatives last week in a ruling that said Texas could block people from putting the Confederate flag on license plates.
Given that Kennedy and Roberts were nominated to the court by GOP presidents, Ronald Reagan in the case of the former and George W. Bush in the latter, their surprise decisions have left a sour taste.
“They lied to the presidents who appointed them. Is there any doubt in anyone’s mind what Ronald Reagan wanted when he picked Anthony Kennedy?” said Matt Schlapp, president of the American Conservative Union. “I don’t trust the court. I don’t trust John Roberts to do the right thing. I definitely don’t trust Anthony Kennedy to do the right thing.”
Some legal experts say the court only appears more liberal because the big cases would have never come before the court if it weren’t so conservative.
“The only reason they heard the Obamacare case is because we have some really deeply conservative justices who thought this could be used as mechanism to strike it down,” said Kent Greenfield, a law professor and Dean’s Research Scholar at Boston College. “With same-sex marriage, they’ve been avoiding taking the case.”
But a ruling this week on fair housing shows it is not just the high-profile political cases where a conservative justice can surprise.