FIRST ONE @ ONE FIRST

The Post-Partisan Court?

Posted in Anticipation, Weekend Reading by Mike Sacks on January 16, 2010

As F1@1F weekend reading, I am posting below a longer piece–previewed in my first post–that I wrote in early December on the Roberts Court’s seemingly “post-partisan” posture in this new Obama era.

This hypothesis is by no means proven – it is merely culled from observations about the Court’s docket this term as related to its decisions of the previous three terms.  The hypothesis’s true test will come as the Court continues to hand down its decisions.

Please keep your disagreements civil in the comments and keep coming back to F1@1F as the term goes on for follow-up analysis.

Enjoy!

—-

Every year, the Supreme Court hears several cases that inflame public passions, prompting Americans to line up on opposite sides of predictable partisan divides.  The Court from Reagan to Bush II could be counted on to divide 5-4 on most any politically salient subjects such as abortion, affirmative action, separation of church and state, right to die, gay rights, and even the outcome of a Presidential election.  Under the Roberts Court, the American public has come to expect the predictable configuration of justices on hot-button issues: Roberts, Alito, Thomas, and Scalia on the Right; Stevens, Ginsburg, Breyer, Souter (and now, presumably, Sotomayor) on the Left; and Kennedy going to whichever side his peculiar vision of individual liberties happens to fall.

Yet a funny thing happened on the way to the Obama era: the Court seems to be flirting with post-partisanship. When Chief Justice Roberts stood on the Capitol steps, his fellow justices bundled up behind him, and administered the Oath of Office to Obama, they overlooked the National Mall crammed with more than million freezing onlookers.  The two representatives of their respective branches worked in concert, but not without momentarily tripping over each other’s words.  That scene may prove to be a metaphor for the interaction between our current political and judicial branches.

In the summer of 2007, at the end of the Roberts Court’s first term with both Bush II appointees on the bench, Justice Breyer seethed that “[i]t is not often in the law that so few have so quickly changed so much.”  The Supreme Court had taken an aggressively rightward tack on abortionstudent speechschool desegregation, gender discrimination, and campaign finance, enabled by the replacement of arch-moderate Justice O’Connor with the solidly conservative Justice Alito, and given political cover by a sympathetic President and Congress.

The following year found the two wings similarly uncompromising, going tit-for-tat over the war on terror and gun rights, as if to imitate the dynamics between the newly elected Democratic Congress and the legacy-seeking Republican Executive.  In Boumediene v. Bush, Justice Kennedy swung into the liberal camp to pen its final victory over the Bush administration’s detentions and prosecutions of enemy combatants held in Guantanamo.  Justice Scalia, in a vituperative dissent, warned that the five-member majority’s decision to grant habeas corpus rights to Guantanamo detainees “will almost certainly cause more Americans to be killed.”

Two weeks later, Scalia triumphantly announced the majority opinion in District of Columbia v. Heller, in which Kennedy provided the fifth conservative vote, striking down D.C.’s handgun ban by defining the Second Amendment as securing an individual right to keep and bear arms.  Justice Stevens, writing on behalf of the four liberals, condemned the majority as the very opposite of “genuine” judicial conservatives: results-driven activists.  Indeed, some Court watchers wondered how the dissenters resisted using Scalia’s inflammatory words in Boumediene against him in their argument for the importance of the myriad gun control laws Heller now called into question.

Fast-forward to this term, which officially began on Monday, October 5.  Although the Court has yet to release any decisions, the high profile cases on its docket reflect the promises and pitfalls of the Obama era’s post-partisan rhetoric.  The Democratic Party, now controlling Congress and the Presidency, is struggling to reconcile the realities of big-tent governance with the demands of competing grassroots ideals.  Meanwhile, United States v. Stevens, which the Court heard in early October, pits liberal values against liberal values in a contest between free expression and animal rights.  And as the Republicans decide which bits of right-wing ideology to embrace or reject as they rebuild from the rubble of 2008, conservative concerns collided at the Court in early December’s Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, when the Court considered whether to abandon principles of federalism in favor of property rights.  Finally, Obama’s overtures to his opponents in pursuing his agenda have their analogue in the Court’s blockbuster of the term: McDonald v. City of Chicago may very well result in a political quid pro quo in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes.

Of course, these three cases may not be so indicative of a new day rising at the Court.  Justice Kennedy’s vote remains the putative fifth vote in Graham v. Florida and Sullivan v. Florida, which questions whether the life imprisonment without parole of a juvenile for a non-homicidal crime violates the constitution’s ban on cruel and unusual punishment, and in Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, which could find the Sarbanes-Oxley Act’s creation of the PCAOB in violation of separation of powers principles.

However, whereas recent history augurs a Kennedy-penned liberal win in Graham and Sullivan, the Court showed only last term in Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al. (NAMUDNO) that it is willing to stop short of the type of ideologically-driven holding that Free Enterprise could bring.  When the Court agreed to hear NAMUDNO, political liberals quivered in fear.  At issue was the constitutionality of Congress’s 2002 vote to extend for another twenty-five years Section Five of the Voting Rights Act of 1965, which required districts with histories of voting rights violations to obtain “preclearance” from the Justice Department for any changes in a covered district’s election procedures.  NAMUDNO presented the conservative justices with its most sweeping opportunity yet to declare the work of the Civil Rights era complete and more fully institute colorblind law.  This was, after all, the same Roberts Court that closed its 2006 term with a 5-4 decision that cited Brown v. Board of Education, the legendary case from 1954 that struck down public school segregation, to hold unconstitutional voluntary, race-conscious public school re-integration programs.

Yet the Court shocked observers when it handed down an 8-1 decision upholding Section Five’s constitutionality.  Chief Justice Roberts, the same man who three years earlier refused a remedy for de facto segregation by stating that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” stopped short in his NAMUDNO decision from judicially willing this country’s history of racial discrimination into obsolescence.  Indeed, faced with the magnitude of exercising judicial review—the most powerful tool the Supreme Court wields over its co-equal branches—against a landmark Act of Congress, the conservatives blinked.  Roberts corralled the conservatives and the liberals under his narrow holding while dispatching Justice Thomas to argue in dissent what ostensibly would have been the conservative majority opinion had Roberts not pulled his right-leaning brethren back from the brink of a certain political firestorm.

But why did the justices determine that NAMUDNO, which roared into the Court’s docket like a lion, should go out like a lamb?  After all, Roberts seldom before let his oft-professed ideal to guide the Court towards broad consensus and narrow holdings take precedence over his demonstrated commitment to conservative ideology.  The Court, however, is not deaf to public opinion.  The term began with a Republican President and a Democratic majority in Congress; the term ended with a Democratic President and a Democratic supermajority in Congress.  Roberts was well aware that the last Court that mounted active resistance to the dominant political will of the American people and their representatives in government now rests in historical infamy.

In order to further a conservative agenda alongside a Democratic executive and legislature, the Court must jealously protect its legitimacy.  The early Roberts Court’s halcyon days of Republican political dominance is over: the conservative bloc, when Justice Kennedy agrees with them, must pick their battles carefully.  That certainly seemed to be their strategy for last term’s potential conservative victories: by balking on NAMUDNO, the Court had enough political capital for a smaller victory in Ricci v. DeStefano, in which the five-member majority held that New Haven discriminated against white firefighters when the city threw out the results of a promotion exam in which disproportionally less black firefighters qualified.  Meanwhile, as if to tell the liberal wing not to get too optimistic over the NAMUDNO compromise, the Court ordered reargument in Citizens United v. Federal Election Commission and presented a new question to the parties that suggested that the conservatives were itching to invalidate federal election laws limiting corporate expenditures during Presidential and Congressional campaigns.

The Court’s decision to schedule a rare September hearing for Citizens United made strategic sense for the Court’s conservative wing in a manner that mirrors President Obama’s own sly “post-partisanship.”  Just as the Right does not trust Obama’s overtures as he pursues even moderately liberal policies, neither should the Left be lulled by NAMUDNO or the absence on this term’s official docket of politically resonant Left vs. Right cases that the conservatives are likely to win.  Indeed, even the potential partisan 5-4 cases are muted: juveniles sentenced to life without parole is hardly as galvanizing as challenges to the death penalty, and claims against administrative agencies do not have the same explosiveness as clashes between Congress and the President.  By placing Citizens United among this term’s cases, the Court, intentionally or not, now possesses the political capital where none existed last term for the conservative majority to open the floodgates for corporate cash in campaigns.

Nevertheless, even if our executive and judicial branches are deploying post-partisan strategy for ideological gain, the strategy significantly slows the traumatic political polarization that would—and did—occur when the branches enable or antagonize the other’s agenda without restraint.  I hope to test this hypothesis as the decisions come down this term and beyond…that is, until the Gay Marriage case hits the Supreme Court. Then it’s back to judicial politics as usual.

12 Responses

Subscribe to comments with RSS.

  1. Conspiracy! « FIRST ONE @ ONE FIRST said, on January 18, 2010 at 12:29 pm

    [...] 18, 2010 Welcome Volokh Conspiracy readers!  While you’re here, give the below “weekend reading” a look – I know many of you will surely have strong opinions about my [...]

  2. Jill M. said, on January 19, 2010 at 10:18 am

    Ba-bam! Great post, can’t wait to see how your predictions (suspicions?) stack up to the coming decisions.

  3. [...] The delay suggests that we could see a late Rehnquist-era fractured opinion where no majority commands a clear holding.  It does not suggest, however, a NAMUDNO-style pull-back to a broad consensus opinion with a narrow holding. [...]

  4. [...] CJ Roberts’s Concurrence Posted in Case Reports by Mike Sacks on January 21, 2010 I just finished reading Chief Justice Roberts’s concurring opinion, joined by Justice Alito, in Citizens United.  It is a fascinating mix of ideological slime surrounded by institutional silver-lining. [...]

  5. [...] a penchant for overruling old cases without explicitly saying so, and an uncanny sense of just how much activism the public will tolerate, the Roberts Court has done a remarkable job of conforming its behavior to [...]

  6. [...] Rosen’s latest piece in The New Republic.  Here’s the money quote, as far as F1@1F is concerned: And then, there was last term’s voting-rights case, in which Roberts wrote an 8-1 decision [...]

  7. [...] to strike down the law are overheated.  We may expect the conservative bloc and Kennedy to chart rightward on conservative-libertarian issues, but as long as the Democrats hold at least one of the elected [...]

  8. [...] assertion defies facts.  In fact, I began F1@1F to explore whether the opposite holds true–that Chief Justice Roberts has guided the Court more modestly under Democratic electoral [...]

  9. [...] Law and Politics by Mike Sacks on May 26, 2010 F1@1F has from its inception been animated by my hypothesis that the Roberts Court’s docket and decisions have been shaped the Chief Justice’s [...]

  10. [...] analysis is absolutely on point.  The intellectual underpinning of F1@1F has been my hypothesis, now apparently proven if the NYT analysis is a reliable source, that this term’s docket [...]

  11. [...] a left-of-center government and knows which storms his ship can handle and which it cannot.  I wrote prospectively about this back in December, Jeff Rosen of The New Republic wrote about it in February, and Adam [...]

  12. [...] much talk, including my own, of this term’s rise of the Roberts Court, we may be in for another incarnation sooner than [...]


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 114 other followers

%d bloggers like this: