Linda Greenhouse has a compelling Opinionator column today at the New York Times that concludes that Chief Justice Roberts, not Justice Kennedy, may be the key vote in the individual mandate cases that will ultimately come before the Court. Thus continues the Great 2010 F1@1F-Greenhouse Mind-Meld.
Reminding readers that Roberts’s mentor and predecessor, Chief Justice Rehnquist, aborted his own “federalism revolution” in 2003’s Nevada Department of Human Resources v. Hibbs, Greenhouse goes on to examine Roberts’s own role as the fifth vote to last year’s broad, Breyer-written federalism case, United States v. Comstock. She concludes:
In his decision this week, Judge Hudson also mentioned the Comstock case, endeavoring to show why it didn’t save the statute. In my view, his effort to wish the case away was unpersuasive, but my view is not the one that matters. The view that ultimately may count the most is that of Chief Justice Roberts. As everyone knows, he was once William Rehnquist’s law clerk. So my question, as the health care debate continues on its path to the Supreme Court, is this: When John Roberts thinks about his former boss and mentor, which Rehnquist does he see? The one who started the federalism revolution, or the one who ended it?
Without my gunning for her attention (a/k/a “the Greenhouse Effect) and surely without her looking to F1@1F, Greenhouse and I have been on the same wavelength, absent reference to Rehnquist’s ghost, for nearly a year now.
For any challenge to the health care legislation, at least one of the current Court’s conservatives–my guess is Roberts himself–will recognize that the political moment, at least in terms of an individual mandate for all Americans to have health insurance, is not ripe for restoring the reign of the Constitution in Exile.
John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.
F1@1F in May, post-Comstock:
Of course, Roberts may have simply agreed from the start with Breyer and the liberals. But even if such a thought was ideologically plausible prior to the announcement of Comstock, it just doesn’t make strategic sense for the Chief to entrust the opinion to Breyer. However, if the Chief was in the majority and did assign the opinion to Breyer, it could have been to send a message to those hoping the Court will strike down Obamacare: abandon all hope ye who enter here, for the Roberts Court will not cross the Roosevelt Rubicon.
After Schwarzenegger v. EMA, I’m no longer as confident in Comstock as dispositive of the Chief’s vote on the individual mandate. Before oral argument in EMA, no one could see any daylight between Roberts’s robust First Amendment opinion for the Court in Stevens and the similar violence-as-obscenity facts in EMA, but Roberts made clear from the bench that he believed that Stevens, however sweeping in its language striking down Congress’s ban on depictions of animal cruelty, did not touch the constitutionality of California’s ban on the sale of violent video games to minors. Accordingly, in the health care cases, Roberts already has a blueprint in Judge Hudson’s decision for distinguishing Comstock away, however apposite Comstock might seem.
Still, history and politics will be sitting like massive gorillas in the room–indeed, every room: chambers, conference, court–when this case finally reaches the Court. Not only would a decision against the mandate mark the Court’s deepest incursion into pre-1937 territory since, well, 1936, but it would also come during a Presidential Election year. A conservative majority ruling against the liberal incumbent’s signature first-term legislation will be an inter-branch collision not seen since, you guessed it, 1936. The decision itself will fast become campaign fodder for Obama to cast the Court as unprincipled political actors hell-bent in their conservative activism to collide with the elected branches and stand athwart the forward march of history screaming “NO!”
How unseemly it all could be.
And let’s not forget that unlike Citizens United, which sat alone on last term’s docket among a bunch of less-than-massive cases, the health care cases may very well reside on the same docket as the Prop 8 case, the University of Texas affirmative action case, the Arizona immigration case, and maybe a Nebraska abortion case. The Court will have to pick its hot button to push in a deeply political moment, and I can’t see the Chief selecting the one that reduces to rubble a cornerstone of modern American jurisprudence.
This morning C-SPAN released a few choice clips from its interview with Justice Kagan in anticipation of its airing the full interview this coming Sunday night. In the above clip, Justice Kagan speaks about her respect for Chief Justice Roberts.
Meanwhile, if you go over to the Supreme Court’s page for this term’s opinions related to orders of the Court, you’ll see this:
This term, I’ve been thinking quite a lot about these two pairings–Chief Justice Roberts and Justice Kagan, Justice Alito and Justice Sotomayor. At oral argument as well as in the few opinions of this term, it has become clear that they are developing doppelgänger demeanors.
Roberts and Kagan conduct themselves like suave assassins, devastating advocates without compromising their gentility. They apprenticed at the feet of the Court’s then arch-partisans–he, Justice Rehnquist; she, Justice Marshall–and now possess those two men’s collegiality without their more prickly public personas. Indeed, Roberts and Kagan, both bred for leadership at Harvard Law, are public creatures: the Chief and the Dean. Firm but polished, one can see these two in twenty years as gracefully grayed totems of conservative and liberal jurisprudence.
Alito and Sotomayor, on the other hand, are their sides’ enforcers. Appearing rough around the edges, they send clear, aggressive messages, often on behalf of their comrades, but sometimes alone on principle. In their self assurance that comes from years of practice in the lower courts, they seem not to have much interest in institutional niceties when the law is disobeyed or justice is disregarded. Both Princeton and Yale Law grads, they took active roles in their institutions’ internal battles over coeducation and affirmative action. Rather than skirt controversy and stay quiet to maintain squeaky clean public records, they took stands over the identity politics of their days that have continued into 21st century America. It is no wonder, then, that Alito and Sotomayor have had no hesitance going on record to dissent from denials of certiorari, even if such opinions were once seen as rare peeks behind the curtain saved only for a justice’s irrepressible outrage.
The massive cases about health care, gay marriage, affirmative action, and abortion bubbling up to the Supreme Court in the next few years will mark the final overlap between the old Court and the new: the septuagenarians–Ginsburg, Scalia, Kennedy, and Breyer–will have as much time remaining in their twilight on the bench as Roberts, Alito, Sotomayor, and Kagan will have spent so far on it. For those cases, we will rightly focus on Justice Kennedy for the bottom-line prognostication and ultimate pronouncements. But we should absolutely save some of our peripheral vision for how our four youngest justices conduct themselves at argument and in print, as those cases will be the crucibles upon which their careers will be characterized for the next generation.
This piece is cross-posted at The CockleBur.
Adam Liptak of the New York Times has just written a long piece on the Roberts Court’s ideological leanings according to leading political scientists. It’s well worth a read, especially for those trained in the law who are used to assessing the Court qualitatively – Liptak engages with the quantitative research that codes and crunches opinions that most of us just read.
Even more fun, the Times has included an interactive feature for us to test how we measure up to the Roberts Court on hot button cases.
If you really enjoy Liptak’s subject matter, I suggest you also give a look to some of the political science books under my “Foundational Texts” in the sidebar to the right. In addition, give a click to the Supreme Court Database, which you can also find linked in my “Resources” sidebar section.
Adam Liptak has a great recap of the just-completed 2009 term:
Chief Justice Roberts took control of his court this year, pushing hard on issues of core concern to him, including campaign finance, gun rights and criminal procedure, even as he found common ground with his colleagues on an array of other issues.
He was in the majority 92 percent of the time, more than any other justice. Last year that distinction went to Justice Anthony M. Kennedy, who is often regarded as the court’s swing vote.
“More than in any other year since he became chief justice, this has truly become the Roberts court,” said Gregory G. Garre, who served as solicitor general in the administration of George W. Bush and is now at Latham & Watkins.
This 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 largely reflected the Chief Justice’s awareness of the Court’s available political capital to achieve conservative gains beside liberal elected branches. The Court primed itself to move the law where they could and to leave for a later day those that would do more damage to the Court’s institutional legitimacy than their worth to the conservative legal movement.
For newer F1@1F readers, please give this post a read.
Most striking since I wrote the piece has been the Chief Justice’s ability to call upon the sort of “restrained activism,” introduced in NAMUDNO at the end of last term when he limited the scope of the Voting Rights Act of 1965 rather than strike it down as many expected. This term, he has employed and endorsed such legislation from the bench so to get the kinds of politically acceptable results to make some of the Court’s pro-business decisions go down a bit easier. Last week, he joined Justice Ginsburg’s Skilling decision to specifically limit and define federal honest services laws rather than strike them down–as urged by Scalia, Kennedy, and Thomas–so not to let Jeff Skilling walk free. Yesterday, in Free Enterprise Fund v. PCAOB, the Chief Justice rewrote the Sarbanes-Oxley Act–created in the wake of Skilling’s Enron collapse–to force the Public Company Oversight Accounting Board into his vision of constitutionality rather than strike it down outright.
What we’ve had, as I suggested in the winter, is a Chief Justice that knew–and cared–that the Court had only one huge expenditure available to it, and spent it in Citizens United. The rest of the docket was formed and decided accordingly, with the conservatives taking smaller, more under-the-radar steps while the liberals won what they could.
Whereas Justice Kennedy may be the limiting factor on the hot buttons of abortion and affirmative action, issues as the NYT piece noted were nowhere to be found this term, he’s firmly in the maximalist pro-business camp. And for a Court operating in an economic downturn with Democrats in the political branches all too willing to cast it as the tool of an intemperate Tea Party, the Chief–often joined by Justice Alito–must serve as the prudent captain of his man of war‘s voyage towards economic liberty without crossing the Roosevelt Rubicon.
In today’s New York Times Week in Review section, Peter Baker writes of “Obama v. Roberts: The Struggle to Come“:
The urgency is greater this year since the Citizens United decision in January, in which the Roberts court threw out precedents to rule that corporations have First Amendment rights to spend money in election campaigns. Advisers said the ruling crystallized for Mr. Obama just how sweeping the chief justice was willing to be. Indeed, some around the president suspect that Chief Justice Roberts, after moving incrementally in his first few years on the bench, has taken a more assertive approach since Mr. Obama took office.
This 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 dominance than he had at the start of his Chiefdom. From F1@1F’s very first post:
During the 2006-07 term, the first full term in which both Chief Justice Roberts and Justice Alito served together, Republicans controlled the White House and both chambers of Congress. Meanwhile, the Roberts Court aggressively pushed rightward on abortion, student speech, school desegregation, gender discrimination, and campaign finance. The Court’s 2007-08 term proceeded alongside a divided government with a Republican President and Democratic majorities in the House and Senate. The Court reflected the division: President Bush, seeking a legacy, saw a conservative interpretation of the Second Amendment win out in Heller; the Democratic Congress, elected in a wave of anti-war sentiment, found its hostility to Bush’s war on terror policies reflected in the Court’s granting habeas corpus rights to Guantanamo detainees in Boumediene. Last term, which straddled the Bush and Obama presidencies, found the Court taking a blockbuster case in in September 2008 that threatened to invalidate a key civil rights provision of the Voting Rights Act of 1965, but pulled back with an 8-1 decision in June 2009 upholding the provision. This term, the first one fully operating alongside a Democratic Presidency and Congress, is progressing in an almost post-partisan fashion, as if the conservative Court has taken to heart President Obama’s overtures to the Right unwelcome among Congressional Republicans. The Court is reckoning with one case that pits liberal values against liberal values, another in which two conservative values clash; further, McDonald v. City of Chicago may result in a grand bargain 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. In fact, the only case that threatens a drastic shift to the right in a politically salient issue is Citizens United, the campaing finance case I camped out for in September.
Since I wrote that in December, Citizens United has emerged, as expected, as the Court’s one big rightward expenditure of its political capital this term. And although the McDonald oral argument put to death my speculation of a grand bargain between the Court’s liberal and conservative blocs, its result–incorporation of the Second Amendment to the states–will not cause a national backlash and political firestorm.
The OT09 docket’s conspicuous absence of any other red-hot button case is, in my opinion, hardly an accident. Roberts knows just how much–or little–political capital his Court possesses to achieve conservative gains under a Democratic electoral mandate, and he has picked his battles accordingly. Baker’s sources are in plain error to use Citizens United as proof of a more aggressive, confrontational Roberts Court.
Baker’s article was not a total wash, however. Noting the Chief Justice and the President’s public colloquy of late, the article concludes:
The debate between the men, by necessity, takes place in this way — indirectly, and soon through the confirmation hearing of a new nominee. Christopher Edley Jr., an Obama adviser and dean of the law school at the University of California at Berkeley, said it was a shame the two could not have at it one on one.
“Televise this chief justice and this president on stage at the Kennedy Center for three hours talking about the role of government and the future of our polity,” Mr. Edley said. “This historic clash of intellectual titans would be the most powerful civics lesson since the Federalist Papers, and we could sure use it.”
We sure could.
UPDATE: Meanwhile, in The New Republic, Barry Friedman and Jeff Rosen support what I’ve written here several times over (or the other way around – as they are law professors who write books, not blogs):
How will the Supreme Court respond to these attempts to enlist it in a war with the president and Congress? If history is any predictor, the justices won’t be interested in a sustained assault. As both of us have written in recent books, on the big issues, over time, the Court tends to come into line with public opinion. Think here of gay rights, women’s rights, and abortion. And when the Court has wandered outside the mainstream–on issues like the death penalty or economic regulation–it has quickly retreated after encountering resistance from the public, Congress, or the president. The Court, in other words, is very sensitive to the possibility of backlash against its actions; and if anything, the heated reaction to its recent decision striking down campaign finance restrictions on corporations is only likely to make it more so.
Which brings us to the Roberts Court. Is it likely to stand in the way of Obama and the Democrats’ agenda? What will happen, in particular, with health care?
We aren’t seers, and a lot can happen before any of this makes its way to the Court. But nothing we’ve seen—including January’s decision in Citizens United—leads us to believe that the Court is likely to behave differently in the future than it has in the past.
Which means that the Court is going to be hesitant to launch a sustained challenge to the core of the Democratic agenda. And in the unlikely (but not impossible) event that it does decide to launch a sustained challenge, the justices will find themselves under attack in return as long as the Democrats still have popular support. If that happens, history suggests that such attacks on the Court will eventually precipitate some kind of judicial retreat.
Any invocations of, say, Citizens United in fear (or support) of the notion that the Roberts Court will not hesitate 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 branches, the Court will invalidate neither landmark New Deal and Great Society legislation nor core components of the Obama agenda.
I cast the same suspicion over arguments citing Bush v. Gore as historical, if not legal, precedent for the Court’s capacity for rash, political meddling. Challenges to the PPACA will simply lack the blinding immediacy of a Presidential election left unresolved a month before Inauguration Day.
Finally, all of this hand-wringing may be for naught: I think the circuit courts will uniformly uphold the law’s constitutionality against attacks, and without a circuit split, I doubt the Court will even grant certiorari. And if there is a circuit split and the Court does hear the case, then I think we’re likely to see a near-unanimous upholding of the law.
In contrast, the Court will more likely reserve its blockbuster 5-4 decision to affirm or reverse whatever the Ninth Circuit will hold on the gay marriage case, an issue of grave importance to movement conservatives without the imprimatur of historical inviolability implicitly grandfathered into the PPACA from its LBJ- and FDR-era ancestors.
Present at tonight’s State of the Union address: Chief Justice Roberts and Justices Kennedy, Alito, Ginsburg, Breyer, and Sotomayor–who put on her neck doily for the occasion.
Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.
NYT’s The Caucus blog agreed with Alito:
But in his majority opinion in the case, Citizens United vs. the Federal Election Commission, Justice Anthony Kennedy specifically wrote that the opinion did not address the question of foreign companies. “We need not reach the question of whether the government has a compelling interesting in preventing foreign individuals or associations from influencing our Nation’s political process,” he wrote. The court held that the First Amendment protected the right of American corporations to spend money on independent political commercials for or against candidates. Some analysts or observers have warned that the principle could open the door to foreign corporations as well.
Here’s more from Politifact.com. So let’s not be so fast to call this Alito’s “Joe Wilson Moment.” Last year Wilson had no proof to shout that Obama lied. Even if Alito broke from the justices’ traditional SOTU decorum, he certainly knows what Kennedy’s majority entailed and what it didn’t, however it may have been characterized by Stevens in his dissent.
For the Justices’ actual words on foreign companies’ contributions, see Kennedy’s opinion at pp. 46-47 and Stevens’s dissent at pp. 33-34.
UPDATE: Alito’s break with decorum made it to Wikipedia for a split second (h/t Scott Hechinger, NYU 3L):
During Barack Obama’s January 27, 2010 State of The Union Address, Justice Alito can be seen shaking his head in the negative and uttering the words “That’s Not True.”
Also, Ben Smith at Politico has the stand-alone scene.
One of the defining features of the John Roberts Court is how rarely it’s accused of being tone-deaf. With a handful of exceptions, the conservative majority on the court has chipped, sanded, and whittled away at the law without need of a drop cloth. With a toolbox that includes judicial minimalism and constitutional avoidance, 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 the prevailing public mood, resisting the impulse to go too far.
That second link? Yeah. Rock!
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.
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 abortion, student speech, school 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.
The WaPo has a story this morning about the inevitable lawsuits challenging the constitutionality of the health care bill’s individual mandate. Over at Balkinization, Professor Mark Tushnet reminds his liberal colleagues, whose quotes in the WaPo piece discard the conservative arguments against the mandate, that the law is what five members of the Supreme Court declare it to be. In Tushnet’s words,
where the stakes are high enough and the political energy is available (to lawyers and judges), at any time the body of legal materials contains enough stuff to support a professionally respectable argument for any legal proposition. So too with the constitutional arguments against the individual mandate. […]
[W]hat the law “is” is what the courts will do in fact, the thing to do is to figure out which side of the argument can count to five first.
Or, put another way, remember Bush v. Gore?
Indeed, some conservative and libertarian legal scholars and practitioners see the health care bill as the best opportunity to restore the “Constitution in Exile“–one eminently protective of private contracts and individual economic rights against government interference–since its banishment in 1937. A few such scholars were quoted in the WaPo piece. Since the fall, the Wall Street Journal has opened its op/ed pages to Constitution-in-Exilers who have attacked the health care legislation as patently unconstitutional.
These advocates are banking on the fact that the health care overhaul is so drastic of an expansion of the modern constitutional order–one in which the Commerce Clause protects nearly every economic regulation–as to compel at least five members of the Court to declare once and for all the intellectual bankruptcy of the country’s post-1937 jurisprudence.
Tushnet is right to warn his fellow liberals not to be so sure of the individual mandate’s constitutionality. And surely there will be members of the Court–Justice Thomas, for one–who will eagerly vote to condemn the mandate. But per my belief that the Roberts Court has been acutely responsive to the surrounding political climate–see my introductory post below–I do not believe a majority of the Roberts Court will want to take the side of the Tea Partiers and the Tenthers on health care.
Further, Congress’s votes in both chambers did not reflect the broad public support for health care reform. In Bush v. Gore, the Court’s five-member majority could rely on just about 50% of the population to support its Presidential preference. For any challenge to the health care legislation, at least one of the current Court’s conservatives–my guess is Roberts himself–will recognize that the political moment, at least in terms of an individual mandate for all Americans to have health insurance, is not ripe for restoring the reign of the Constitution in Exile.