There are a wide range of reactions to the opinions of the Supreme Court, as well as marked differences on the overarching influences on the court’s actions.

It should be interesting to take a look at some of these differing perspectives.

The editorial board of the N.Y. Times has promoted a fairly popular theory that, during the 10-year tenure of Chief Justice Roberts, the court has taken an activist role that mostly came out the way liberals wanted and it is therefore tempting to see a leftward shift among the justices.

According to the N.Y. Times, “That would be a mistake.  Against the backdrop of the last decade, the recent decisions on same-sex marriage, discrimination in housing, the Affordable Care Art and others seem more like exceptions than anything else.  If they reflect any particular trend, it is not a growing liberalism, but rather the failure of conservative activists trying to win in court what they have failed to achieve through legislation.”

Even when a majority of the justices rejected conservative arguments, the decision to hear those cases in the first place showed the court’s eagerness to reopen long-settled issues.  For example, in last month’s ruling on the Fair Housing Act of 1968, the court held 5-4 that discrimination could be illegal under the law even if there was no evidence that it was intentional.  This might seem to be a “liberal” result, except that 11 federal appeals courts had agreed on this reading for decades.  There was no legal dispute, in other words, only the persistent efforts of some justices to reverse accepted law because they didn’t like it.

At the same time, the powerful have been given a helping hand.  As the most business-friendly court in decades, it has ruled again and again in favor of corporate interests.  In one campaign finance case after another, most notably Citizens United v. Federal Election Commission, the conservative majority has helped the wealthiest Americans raise their voices even louder in the political sphere.

Through it all, Chief Justice Roberts, who during his confirmation hearings promised judicial restraint above all else, has presided over a court that has been far too willing to undermine or discard longstanding precedent.  Among the biggest examples of this are District of Columbia v. Heller, which upended the long-accepted meaning of the Second Amendment; Citizens United, which overturned decades of rulings and laws to allow unlimited campaign spending by corporations and unions; and Shelby County v. Holder, which gutted the core of the Voting Rights Act.

His votes to protect President Obama’s signature health care reform law showed he was not willing to leap into the deep end of conservative activism.  “In every case, we must respect the role of the legislature (Congress) and take care not to undo what it has done,” Roberts wrote.

Certainly, the most popular view of the court is that more than ever it is a Kennedy court, Richard Hasen, Law Professor at UC Irvine, writing in the L.A. Times, said:

“Forget the debate over whether the Supreme Court has taken a liberal turn.  It is not a liberal court or a conservative court.  It’s a Kenned court.  On major constitutional and statutory questions, Justice Kennedy’s views matter more than anything else.

“Liberals do have more to celebrate this term than in the recent past, from the same-sex marriage and Obamacare decisions, to a major housing discrimination case, to a surprising win for minority plaintiffs in a voting rights lawsuit.  In those cases, Kennedy was in the majority, and all but one—Obamacare—were decided 5 to 4.

“Indeed, there were only a handful of important cases this term in which Kennedy was on the losing side of a 5-4 split.

“Looked at over the long run, Kennedy’s influence seems even greater.  Think of the Supreme Court’s 5-4 decision in the 2010 Citizens United case striking down the ban on corporate spending in elections, which has opened the floodgates to “super PACS” and big money in politics.  Or consider the court’s 5-4 decision in the 2013 Shelby County case, which eviscerated a key provision of the Voting Rights Act.  Kennedy was in the majority in each instance.

“How does the court’s swing voter choose sides?  The evidence suggests that Kennedy goes with his gut and personal sense of morality rather than well-thought-out and consistent jurisprudential theory.

“Consider, for example, the contrast between the court’s decision last term in an affirmative action case called Schuette and its decision last week in the Obergefell case finding a constitutional right to same-sex marriage.

“In Schuette, Kennedy wrote that Michigan voters could pass a ballot measure banning the use of affirmative action in college admissions.  Arguing in favor of judicial restraint, he said the decision was best left to the democratic process.

“Yet when it came to same-sex marriage, Kennedy was just as content to take the question away from the voters.  He wrote for a different 5-4 majority in Obergefell:  ‘It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process.  The issue before the court here is the legal question whether the Constitution protects the right of same-sex couples to marry.’”

Kennedy certainly has been and will in all probability continue to be the swing vote on all major issues.

Now, I’m not a constitutional scholar.  I’m not even a lawyer, but I have some difficulty understanding the logic of some of the opinions by the Supremes.

I personally agree with the result of the opinions regarding gay marriage, congressional redistricting by an independent commission, and allowing federal subsidies for people in non-state exchanges.  Even though I agree with the outcomes, for the life of me I cannot find any logistical explanation for how they could arrive at those conclusions.

Chief Justice Roberts has said, “Let Congress pass the laws, not the court,” but how can he rule in favor of the subsidy issue when the law explicitly states the opposite and how can he know the intent of Congress when their Speaker Nancy Pelosi said, “We have to pass this law to find out what’s in it.”

The Constitution says nothing about marriage, gay or otherwise, and the Constitution specifically says the State Legislatures shall decide on districting.

Last, but certainly not least, I am confounded by the 2010 ruling in Citizens United case, preventing Congress from restricting independent political expenditures made by corporations and unions.  This to me was the most overreaching, impossible-to-understand decision of the last 20 years.

“Unlimited campaign expenditures ‘impair’ the democratic process,” retired Supreme Court Justice John Paul Stevens (a liberal) told senators, urging Congress to amend the Constitution to allow “reasonable limits” on election spending.

“While money is used to finance speech, money is not speech,” Stevens said.  “After all, campaign funds were used to finance the Watergate burglaries—actions that clearly were not protected by the First Amendment.”

“Elections are contests between rival candidates for public office,” Stevens said.  “Like rules that govern athletic contests or litigation, those rules should create a level playing field, not distort the election process.”


Leave a comment

Filed under Blog

Leave a Reply

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

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

Google photo

You are commenting using your Google 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 )

Connecting to %s