July 6 (Bloomberg) -- Will the real U.S. Supreme Court please stand up?
Impeccable liberal sources, including the editorial page of the New York Times, insist that the court is radically activist and conservative, regardless of its decision to uphold the Affordable Care Act. Conservative observers continue to intone that the court is liberal and out of touch with America -- as it has been for nearly 60 years, since Earl Warren was named chief justice in 1953.
Who is right? Should we be paying more attention to the court’s cursory one-pager reaffirming Citizens United (and the super-PACs), or to the health-care and immigration decisions, in which close majorities reached compromise positions that leaned left?
The liberal case that this is a strikingly conservative court poised to become more so must be taken seriously. A slim 5-4 majority that includes Justice Anthony Kennedy has essentially gutted campaign-finance regulation over the past three years, ending a decades-old judicial compromise in which campaigns were allowed to spend as much as they wanted but individuals and corporations were limited in how much they could donate.
That compromise never made much doctrinal sense: If money is speech, neither spending nor donation should be limited; if it isn’t, both should be subject to regulation. Nonetheless, the compromise did represent a pragmatic solution to the partisan political debate over money in elections. Now, the court has picked a winner -- the conservative view that money should flow freely. Because its crucial rulings have been based on fundamental constitutional rights rather than the language of the statutes, there is nothing that Congress can do about it.
The court has also struck down an unusual amount of legislation in recent years, often using reasoning that seems to hark back to the bad old days of conservative activism in the 1920s and 1930s. It revived the Second Amendment to strike down gun-control laws in Washington; it invalidated the protection from firing enjoyed by the members of the public accounting board created by the Sarbanes-Oxley corporate reform law; and it held that unions must get the consent of nonmembers before using their money for political purposes.
Yet the liberal critics are soft-pedaling the dramatic end of this year’s term. Five major cases loomed. All were extremely close. And in four out of the five, the result was decidedly a win for liberals.
The court ruled, with Kennedy providing the deciding vote, that states could not impose mandatory life sentences on juvenile offenders convicted of murder. This decision continued a decidedly liberal trend of decisions (in which Kennedy has participated) using the concept of cruel and unusual punishment to block states from certain punishments of minors and the mentally disabled. These decisions overruling tough state laws are the sort of thing conservatives detest as elitism and liberals embrace as humanitarian.
When it came to free speech, a split coalition of five -- again including Kennedy -- struck down an innocuous-seeming federal law that outlawed lying about your military decorations. This is not quite free-speech absolutism; but to say that Congress lacks the power to prohibit you from falsely announcing that you received a Medal of Honor surely comes close. Conservatives could be forgiven for thinking that the Warren Court’s free-speech revolution isn’t over yet.
In the Arizona immigration decision, the court relied on federal power to block the state from doing almost anything on its own to enforce immigration law except running a mandatory status check on people who are stopped or arrested for other reasons. Even in doing so, the court warned the state against holding arrestees any longer than usual to perform the check, and reminded us that the law could still be challenged if it is applied in a discriminatory way, for example through racial profiling. Liberals could hardly have asked for a clearer repudiation of the sentiment for tough, state-based enforcement against illegal immigrants that lay behind the Arizona law and copycat efforts in other states.
Then there was the health-care shocker. Conservatives were prepared to be betrayed by Kennedy. He is conservative when it comes to federal power and liberal it comes to human dignity; and there was a risk that he would consider health insurance to fall more in the latter category than the former. But few, if any, conservative court watchers thought they would keep Kennedy and lose Chief Justice John Roberts, darling of the conservative Federalist Society and former clerk to conservative stalwart William H. Rehnquist.
Make no mistake: The health-care case was conservatives’ greatest opportunity in a generation to repudiate expansive government programs that many of them believe infringe on the liberties of the citizen. The individual mandate seemed like a gift from the gods: a simple, easily understood government-imposed obligation in the midst of a vast and inscrutable law. They will not get another chance like it again.
Amazingly, deus ex machina, the principle of judicial restraint prevailed over the impulse to activism. Defeat was snatched from the jaws of victory -- a belief since made all the more acute for conservatives by plausible speculation that Roberts changed his views during deliberation.
Conservatives are left with frustration and outrage that, after years of coordinated efforts, the court is still not a conservative power-center. As was the case in 1992, when conservative hopes of repealing Roe v. Wade were dashed by Republican nominees Kennedy, Sandra Day O’Connor and David Souter, it seems that something always blocks the court from the decisive conservative result.
Granted, the justices of this court are still deeply split, with four liberals, four conservatives and a swing voter in Kennedy. But, despite fears and hopes to the contrary, the Supreme Court as an institution has remained cautiously, gradually liberal.
(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)
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