With many cases before the Supreme Court, while theoretically the questions are legal and/or constitutional ones, in practice there is frequently a question of whether the liberals or the conservatives will triumph.  There are, at this time, four justices appointed by Democratic presidents known as the liberals, and five appointed by Republicans presidents who are considered conservative.  But all it takes is one of those five to join the liberals to make a liberal victory, and that has managed to happen quite a number of times, though certainly not always, these past few years.

Now, the latest updates on cases we talked about this past semester.

1. OBAMACARE:  That wasn’t a constitutional question, but rather, one of rather a glitch in the wording of the law should be construed as prohibiting the federal government from giving subsidies for health care to people who live in states that don’t have their own state exchanges.  In that case, two of the Republican appointees, Anthony Kennedy and Chief Justice John Roberts, voted with Justices Ginsburg, Breyer, Kagan, and Sotomayor to allow Obamacare to continue undisturbed.  The Republicans in Congress, of course, are fuming.  Conservative dissenters on the Court are Justices Thomas, Scalia, and Alito.

2. SAME-SEX MARRIAGE:  Here, only one Republican-appointed justice joined the liberals, and that’s Kennedy.  Using the 14th Amendment (“No state shall…deny any person within its jurisdiction the equal protection of its laws”), five justices ruled that all states have to license and recognize the marriages of same-sex couples.  As you’ve heard me say in class, this represents the most dramatic change in both law and public opinion that I have seen in my lifetime, because I was already teaching at a time when some states still had criminal laws against homosexual relations (sodomy), and the Supreme Court was not yet willing to interfere.  Now, the Supreme Court is not even letting a state say “if you want the full benefits of marriage, move to another state that grants them.”

See my earlier post on another case we discussed, the question of whether Texas had the right to refuse to put the Confederate flag on customized license plates.  On that one, it was Justice Thomas, who is both conservative and African-American, who voted with the liberals.

After the massacre by a 21-year-old white supremacist of nine African-American worshipers in a church in Charleston last Wednesday night, a barbarism that I think would have horrified even the average racist in the Jim Crow era, and after the circulation of pictures showing him sporting the Confederate flag, there has been pressure on the Republican candidates for president to call for the removal of the Confederate flag from South Carolina’s state Capitol property.  (Note the difference between two Deep South states, by the way: that Supreme Court case I wrote about earlier today involved Texas defending its right to refuse to help display the Confederate flag.)  Today, South Carolina’s governor Nikki Haley bailed them out by calling for its removal.

While I post links to these two excellent treatments of this late-breaking story–http://www.politico.com/story/2015/06/republican-confederate-flag-reversal-119309.html?hp=t1_r and http://www.npr.org/sections/itsallpolitics/2015/06/22/416548613/the-complicated-political-history-of-the-confederate-flag–I’m just going to add this quick thought.  In recent times, conservatives have tried to make the issue of the flying of the Confederate flag on state property in South Carolina a question of whether people who don’t live in South Carolina have the right to tell the people who do live in South Carolina what to do.  Back in the nineteenth century, that same argument was being used about slavery, and in much of the twentieth century Jim Crow segregation was also framed in exactly those terms.  And be clear, the people involved fully believed what they were saying.  South Carolina politician Strom Thurmond believed every word of it, when he tried to explain to his half-black daughter that she should not take it personally when he defended segregation from northern intrusion.  (Essie Mae Washington-Williams, Dear Senator, is a fascinating memoir written by that daughter.)

But, be all that as it may, Republican candidates this past week were between a rock and a hard place, caught between looking racist to swing voters nationwide and looking to conservatives of South Carolina as if they were trying to tell the people of South Carolina what to do.  The best that a couple of them were willing to say was that they were sure the people of South Carolina would do the right thing.  Anyway, Governor Haley has done her fellow Republicans a huge favor by removing this as an issue that will give them grief.

And of course the Confederate flag is a symbol of the defense of slavery.  Southern conservatives today like to paint the Confederate cause as being about this lofty abstract principle of “states’ rights,” as distinct from slavery, but the Confederates themselves, in the time of the Civil War, made no such distinction.

You may remember, a few months ago, we talked about a case before the Supreme Court involving customized license plates in Texas.  The question was, if Texas, as a means of bringing in more revenue, allows people to pay for specialized logos on their license plates–including athletic teams, charitable causes, product brands–then does it also have to allow the Confederate flag?  Is Texas violating people’s freedom of speech by not allowing it?  Do specialty plates represent individual speech or government speech?

The Supreme Court just ruled that Texas does not have an obligation to allow the Confederate flag on specialty plates, even if it allows just about everything else.  The Court’s majority opinion was that these plates represent the voice of the state government rather than the voice of the individual motorist, and that the state government has the right to decide what it wants to say.

And what was the breakdown of justices?  Well, four conservative justices ruled that Texas should be required to permit the Confederate flag if it allowed all those other symbols to be on the specialty plates, on the basis of freedom of speech, and four liberal justices ruled to the contrary.  That means we need to see one more justice cast the deciding vote.  So, who was that justice?  It was none other than Clarence Thomas, conservative African-American appointed by the elder Bush, who has consistently voted with the conservatives on affirmative action cases while chiding them for not being conservative enough on that issue.  He has taken a lot of heat for this, getting called all kinds of nasty names.  On this issue, he voted with the four liberal justices, making for a ruling that Texas can go on having specialty plates and can go on saying no to the Confederate flag, which some view as a symbol of southern sectional pride and others view as a symbol of white supremacy.

Here’s the story:  http://www.politico.com/story/2015/06/license-plates-texas-supreme-court-ruling-119164.html

We are, of course, still waiting to see how the Court will rule in the Obamacare and same-sex marriage cases.  On those cases, the justices to watch are Roberts and Alito.