SCOTUS in 2012: It Coulda Been Worse

Flickr/Rick Reinhard

U. S. Supreme Court rules to uphold the Affordable Care Act, June 28, 2012.

The Supreme Court's most recent year will be remembered primarily for one blockbuster case: NFIB v. Sebelius, in which the Court narrowly upheld the Patient Protection and Affordable Care Act (ACA). This is justified—it's hard to overstate the impact of striking down a sitting administration's crucial legislation for the first time since the New Deal. Given that assembling legislative majorities for new health-care legislation is not likely to be possible again for many years, striking down the most important domestic legislation since the Great Society would have had devastating consequences for the millions of Americans who would have been denied access to health care for the foreseeable future. 

And yet, in some ways, the legal challenge to the ACA represents a conservative victory as well. It is, first of all, remarkable that a constitutional argument nobody took seriously five years ago was able to garner five votes at the Supreme Court (even if a loss on the issue of the federal taxing power prevented them from winning ultimate victory). Conservatives also managed to get seven votes for a limitation on the use of the federal spending power that will deny the citizens of a number of states access to an expanded Medicaid program for the time being. And while the Supreme Court's willingness to impose strict limitations on congressional power will depend on future elections, it remains disturbing that five justices were willing to return to a pre-New Deal conception of the federal government's power to regulate commerce.

The limitations placed on the federal spending power were far from the only conservative victory of the last year. Leaving aside Sebelius—in which the Chamber of Commerce filed a brief on a technical question but otherwise lobbied furiously against the legislation and was probably disappointed that it was upheld—the Chamber of Commerce won on every Supreme Court case on which it filed an amicus brief in the last Supreme Court term. This continues a long-term trend of the Court becoming increasingly pro-business. The Chamber overall has a remarkable 68 percent success rate under the Roberts Court—much higher rate than under the Rehnquist or Burger Courts, neither of which were exactly bastions of liberalism. In perhaps the most important of these victories, Knox v. SEIU, the Court went beyond what any of the litigants were asking to make it much for difficult for unions to collect donations for political campaigns. As the Supreme Court uses the First Amendment to expand corporate power, in other words, it also uses implausible readings of the First Amendment to reduce the power of organized labor.

On civil liberties, the record was somewhat more mixed. In the most dismaying decision of the past year, by a 5-4 majority the Supreme Court upheld strip searches of people arrested even for trivial offenses with no individualized suspicion. It ducked the substantive key free-speech case concerning the FCC's arbitrary ability to regulate speech. On the other hand, Justice Anthony Kennedy joined with the Court's four Democratic appointees to apply the reduction in the sentencing disparity of people convicted of possessing or distributing crack as opposed to powdered cocaine.

Finally, on an issue that is likely to be one of the most hotly contested during the next session of Congress, the Court struck down most (although not all) of SB-1070, the infamous Arizona anti-immigration law, as being pre-empted by Congress. And even the provision that was upheld, a requirement that local law enforcement officials make a "reasonable attempt ... to determine the immigration status" of people they expect of being in the country illegally will be subject to constitutional scrutiny based on how it is applied. Another notable aspect of the case is the clownish, political anti-immigration rants in Justice Antonin Scalia's dissenting opinion, which he expressed more extensively at oral argument. Some Republicans know that hostility to immigration reform is going to make it increasingly difficult to compete in national elections, but as Justice Scalia's performance indicates (and George W. Bush discovered), selling moderate immigration policy to movement conservatives won't be easy.

For progressives, the bottom line of the most recent year of the Supreme Court is that "it could have been a lot worse." With the Supreme Court poised to rule almost all affirmative action unconstitutional and cut out the heart of the Voting Rights Act, I'm not sure we'll be saying that this time next year.

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