Previously, I did a post reacting to John Robert’s “defection” from the conservatives on the Supreme Court that asked whether liberal justices ever did this sort of thing in important cases. Based on a couple of responses, I can list two examples in high profile cases.
First, there are liberal defections in NFIB v. Sibelius itself. In Sibelius, liberal Justices Breyer and Kagan joined Chief Justice Roberts’s opinion holding that Obamacare could not require states either to accept an expanded Medicaid program or to risk losing all of their funds under the old Medicaid program. I am not entirely sure why Breyer and Kagan joined Roberts on this one, but perhaps the most obvious explanation is that they actually believed it (although there are other possibilities, including getting Roberts to approve the mandate).
Second, there were the liberal defections in Bush v. Gore, where liberal Justices Breyer and Souter agreed with the Court’s conservatives that the Florida recount violated the Equal Protection Clause (thus, leading to a 7-2 vote on that score), but disagreed with the conservatives on the remedy of halting the recount. (For what it is worth, I agree with Breyer and Souter that the conservative majority was wrong on the remedy for violation of the Equal Protection Clause.)
What I think is significant about both of these examples is that the liberal defections were so limited. In Bush v. Gore, the liberal defectors would not have halted the recount. Therefore, their decision would not have immediately resulted in the election going to to Bush, as the conservatives’ decision did.
Similarly, the defection in Sibelius is very limited. While Roberts allowed Obamacare to continue largely intact, the liberal defections merely allowed the states to not accept the new Medicaid without losing the old Medicaid. It is not clear how many states will turn down the new Medicaid and for how long (once they accept, they cannot withdraw). Most people seem to predict that it will be much less than half of the states and probably a relatively small number.
So the liberal defections are limited, whereas the conservative defections in cases like Casey involving abortion and Sibelius are big time.
Are there other examples of liberal defections?