The Supreme Court’s landmark decision upholding the Affordable Care Act was a deft turn by Chief Justice John Roberts Jr., who voted with the court’s four moderate liberals for the first time in a 5-to-4 ruling. Yet, while they upheld the law’s mandate for individuals to buy insurance under Congress’ taxing power, the chief justice joined the four other conservatives to reject that provision under the Constitution’s commerce clause.
That rejection underscores the aggressiveness of the majority’s conservatism and marks a stunning departure from the long-established legal consensus that Congress has broad power to regulate the economy.
The court’s conservatism calls to mind the defiance of the court in the 1930s when it regularly struck down New Deal statutes during the Great Depression. But there are important differences. The 1930s court saw itself as preserving established precedents and principles. The Roberts majority does not have that conservative role. Nor does it play the role of the 1960s court, whose rulings reinforced a relatively liberal trend in politics.
The current conservatives are not preserving a tradition or articulating a new social consensus. Instead, as the legal historian Robert W. Gordon put it, they have regularly been radical innovators, aggressively stepping into political issues to empower the court itself. The majority took that approach this term in the politically charged fields of union governance and campaign finance regulation. In a union dues case, it broke a court rule by deciding an issue that was not presented in the case and went out of its way to take the side of right-to-work laws, which have been the subject of bitter political debate. On campaign finance, it overturned the Montana Supreme Court ruling in favor of the state’s anti-corruption law without hear- ing oral argument or considering a substantial factual record. In doing so, it extended to state campaign finance regulation the Citizens United ruling, which allows corporations and unions to spend freely in elections, the Roberts court’s most devastating decision.
The court took a similar path in retreating from the constitutional right of criminal defendants to confront witnesses against them in cases involving forensic evidence. It refused to follow recent precedents, which say clearly that defendants must be allowed to cross-examine crime lab analysts responsible for forensic tests.
The term’s statistics belie the fractiousness of the court, which decided almost half its cases by 9-0. (Many involve technical legal issues, and sometimes the justices’ different legal approaches lead them to the same result.) In some important cases, with one or two conservatives going over to the moderate side, the majority reached conclusions that went against the court’s conservative politics. It held that criminal defendants had a right to effective lawyers during plea negotiations; that three of four provisions of Arizona’s deplorable immigration law were pre-empted by federal law; and that mandatory life without parole for juveniles was cruel and unusual punishment. While Justice Anthony Kennedy is clearly a conservative, his inner compass sometimes leads him to vote with the court’s moderate liberals, as in the right-to-counsel, immigration and juveniles cases.
Six full terms after Justice Samuel Alito Jr. joined the court, the five in the majority have redefined judicial conservatism. The contrast in style and philosophy with the moderate minority is pronounced, including the conservatives’ willingness to flout court rules, constraints of precedent and well- established practices of legal reasoning to reach results they seek. It is no wonder that the court’s standing in public opinion polls is at its lowest level in a quarter of a century, with just one in eight Americans believing that the justices decide cases based only on legal analysis. Justice Elena Kagan said last month, dissenting in the crime lab evidence case, that the conservative majority sometimes forsakes “precedent-based decision making,” which guides lower court judges and provides predictability in the justice system. The court reached the right result on the Affordable Care Act, but that ruling was not a sign of change in a strident conservative majority.
The New York Times