Legal issues have a way of changing form over the years in such a way that the liberal and conservative teams, such as they are, each periodically migrate over to occupy the positions the other formerly held. Examples from today’s two big cases:
- In 1990, when the Court decided Employment Division v. Smith, the Indian peyote case, it seemed clear that the liberal stand was to sympathize with religious believers seeking exemption from otherwise applicable general laws, while the conservative position — expressed by Justice Scalia in a majority opinion over a dissent by Blackmun, Brennan, and Marshall — was that sorry, but asserting religious scruples doesn’t place you above the law. Congress then proceeded to adopt by way of RFRA, the Religious Freedom Restoration Act, a mechanism using statutory means to achieve much the same ends as the liberals had sought to locate in constitutional law. Two decades later, where are we? The analogy with Hobby Lobby is by no means exact — one might decline to constitutionalize religious conscience rights yet still favor their vigorous statutory application, and the Smith case involved individuals rather than family corporations. But still: by prevailing back then, Scalia and the conservatives shaped a more favorable terrain for what to become the liberal position in Hobby Lobby, while the position embraced by Brennan and Marshall back then, had it prevailed, would have given the religious objectors in Hobby Lobby stronger ground to stand on.
- Protection for the speech and expression rights of public‐sector employees is a specialized area of constitutional law and, under existing Supreme Court precedent, a bit of a balancing act in which the interests of the government‐as‐employer in maintaining an orderly and efficient workplace often outweigh the expression rights of individual public employees. Not that long ago, it would have been a plausible generalization that liberals on the Court were enthusiastic about guarding and expanding the individual expression rights of public‐sector workers, while conservatives tended more to stress management prerogatives. But in today’s Harris v. Quinn, it was the conservative majority that demanded respect for individual employees’ expression rights even where doing so might tend to destabilize an overall public policy, while the dissenting liberals led by Justice Kagan deprecated those same individual expression rights as all very nice in their way but needing to yield to the rights of management.
Has anyone tried to compile a list of all the various issues in which liberal and conservative blocs have traded positions with each other over living memory? I suspect it would be a long one.