A momentous Supreme Court term concluded on Wednesday with historic decisions on same-sex marriage. But while the previous term will be forever defined by the Court's narrow upholding of the Affordable Care Act, the 2012-3 term had an unusual number of important decisions for a contemporary court. There are several important lessons to take from the term as a whole:
On Civil Rights and Liberties: One Step Up, Two Steps Back.
As Philip Klinkner and Rogers Smith observed (among many others) in their book The Unsteady March, progress on civil rights isn't a linear progression in which things start off terribly and keep getting better. Progress achieved in one generation can be substantially rolled back in the next; civil rights often advance for some groups while backsliding for others. (World War II catalyzed substantial civil rights advances for African-Americans; Americans of Japanese origin and suspected political radicals, conversely, saw substantial repression.)
This historical pattern was very much visible in this Supreme Court term. Major (if somewhat less major than might have been hoped for) progress for gays and lesbians was balanced with decisions that represented substantial setbacks for voting rights, civil rights enforcement, the rights of consumers, and Fourth Amendment rights. Regrettably, the crucial decision gutting the Voting Rights Act was based largely on a willful misreading of this history; the Court seemed to be saying that once a statute had effectively (although far from perfectly) addressed racism, the problem is gone forever and legal restrictions are no longer necessary. The rush of states formerly covered by the preclearance provisions of the VRA to enact vote suppression statutes in the wake of the Supreme Court's action makes it clear that this logic is wrong.
The somewhat erratic record on such issues is a straightforward outgrowth of the necessity for the Court's four-member liberal bloc to obtain at least one additional vote. In some issues—Kennedy on LBGT rights, Scalia and Thomas on some civil liberties issues—this is possible. But on the larger number of issues where all five of the conservative justices exhibit hostility to the rights of women and racial minorities that increasingly characterizes the contemporary Republican coalition, backsliding is the order of the day. (And while the liberal coalition is relatively unified, Stephen Bryer is always a risk to defect in civil liberties cases.) What's depressing going forward is that whatever heterodoxy there is to be found among the Supreme Court's conservative wing comes from justices prior to the presidency of George W. Bush. Anthony Kennedy, the most moderate of the conservative nominees, is not only the kind of Republican increasingly unlikely to be found in the current GOP, he was Reagan's third choice. If Kennedy and Scalia were to be replaced with (even) more consistent reactionaries like Alito and Roberts, we would be looking a Court as consistently to the right of the mainstream as the New Deal Court that precipitated a near constitutional crisis.
A Failure of Craft
Eric Posner of the University of Chicago Law School observed that "[s]imply considered as efforts to persuade, using the conventional tools of legal reasoning, the majority opinions in the three blockbuster cases—Fisher, Shelby County, and Windsor—were real failures." Justice Kennedy's majority opinion striking down a key provision of the Defense of Marriage Act, as was noted across the ideological spectrum, was incoherent mush, flirting awkwardly with federalism, due process, and equal protection rationales without ever quite summoning up the courage to invite one to the prom. In the Supreme Court's latest foray into affirmative action, neither the majority nor concurring opinions even attempted to explain how subjecting affirmative action to strict scrutiny can be squared with conservative constitutional principles.
Still, Shelby County takes the cake here. Ruling on the heart of one of the most important statutes ever passed by the United States Congress places a particularly high burden on the Court to give intelligible (if not necessarily persuasive to all) reasons for its actions. But Roberts's opinion in this regard was an utter failure, unable to even identify the constitutional provision the Voting Rights Act allegedly violated. Roberts's opinion first gestured at the Tenth Amendment, but the Voting Rights Act obviously did not violate it. The Tenth Amendment says that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States," but since Section Two of the Fifteenth in fact unambiguously delegates to Congress the power to prevent racial discrimination in voting, the Tenth Amendment is irrelevant to the constitutionality of the Voting Rights Act. Roberts also cited the "equal sovereignty of the states," which has no basis in the text in the Constitution or, as he used it, in the Supreme Court's precedents. The few previous cases to discuss the "equal sovereignty of the states" refer merely to new states being on equal footing in terms of admission with the original 13. No previous case has ever suggested that Congress cannot pass valid legislation that affects states differently, not surprisingly since this 1) would be transparently unworkable, and 2) the Constitution protects the equality of persons, not states. Leaving aside the bad policy established by the VRA case, the Chief Justice's majority opinion simply fails at the basic tasks a Supreme Court opinion must perform to justify striking down an act of Congress.
Kudos to Kagan
I was relatively skeptical of Obama's choice of Elena Kagan, wondering why Obama (given rare Senate majorities) didn't choose a justice with a clearer record. But whether Obama knew something that wasn't known to the public, got lucky, or a little of both, his pick has been vindicated: Kagan has been a superb choice. Her voting record has been solid, agreeing with the Court's liberal anchor Ruth Bader Ginsburg (who wrote several brilliant dissents in her own right this term) 96 percent of the time. And she has also emerged as a distinctive voice on the court, joining Scalia as the rare justice who writes readable prose, but without Scalia's tendency to use silly political soundbites. Kagan also shows that presidents should not just be looking to the appellate courts for future justices; Kagan's lack of judicial experience, uncommon among recent justices although not unusual historically, has not been a hindrance.
The Best Friend a Chamber of Commerce Could Have
Lee Epstein, the University of Southern California professor whose recent book provides invaluable information about the conservative turn of the Court, told Adam Liptak of The New York Times that "we shouldn’t lose sight of the court cementing its legacy as the most pro-business court in the modern era." In addition to the strained opinions favoring businesses over consumers and workers mentioned above, the same Supreme Court that used nearly lawless reasoning to prevent Congress from enforcing voting rights interpreted federal law broadly to prevent people injured by generic drugs from suing. And even when the outcome of the case was unexceptionable, the Court reached far beyond what the case required to advance the interest of business. In a decision that reasonably dismissed a human-rights suit under the Alien Torts Act (all nine justices agreed with the outcome of the case), the majority opinion of Chief Justice Roberts went out of its way to read the statute as prohibiting future lawsuits that the statute was plainly intended to permit. We should, Justice Bryer's concurrence urged, "treat this Nation’s interest in not becoming a safe harbor for violators of the most fundamental international norms." Alas, the Court failed to do so, consistent with its consistent findings that business interests should not be held legally accountable for rights violations when federal law provides remedies.
Overall, while the number of important cases was above average, this term was par for the Roberts Court course: relentlessly pro-business, and largely conservative on civil rights and civil liberties issues with a few salutary exceptions. And while the recognition of the basic rights of gays and lesbians was laudable, the rights of too many others were left behind.
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