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The Supreme Court’s conservative agenda

July 3, 2013

Originally published in Aspenia Online of the Aspen Institute Italia

In a repeat of what happened in 2012, the US Supreme Court once again ended the judicial year with a bang.

Almost exactly twelve months ago, Chief Justice John Roberts took everyone by surprise when he sided with his four more liberals colleagues to affirm the constitutionality of the healthcare reform law known as Obamacare, much despised in the conservative circles he normally frequents. This time around the justices, split along more traditional lines (with liberal justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joining the majority opinion written by the swing vote Anthony Kennedy), opted to strike down one of the central tenets of the Defense of Marriage Act. DoMA is a 1996 law, signed by then Democratic President Bill Clinton, which prevented the federal government from recognizing same-sex marriages. With this new Supreme Court decision, federal benefits (including joint tax filing and healthcare) until now only accessible by married heterosexual couples will also have to be made available to married gay couples, at least in those states where same-sex marriage is legal.

In a parallel decision that also came on the very last day of the 2013 judicial year, a more surprising majority of justices (which included Ginsburg, Breyer, and Kagan as well as conservative justices Antonin Scalia and Chief Roberts) rejected on a technicality an appeal brought by supporters of Proposition 8, the referendum that had banned gay marriage in California in 2008 and which a lower court declared invalid a few months ago. By doing so, the justices allowed same-sex weddings to resume across the country’s most populous state.

These are unquestionably important victories for the US gay community in particular and for American liberals in general. But, just like last year’s Obamacare decision, the justices’ deliberations in the DoMA and Prop 8 cases should not be taken as a signal that this conservative-leaning court is really not that conservative after all. If one digs deeper into the details of the gay marriage decisions, or looks into the other major cases that were decided this year, it immediately becomes evident that the four right-of-center members of the court (Chief Roberts, Scalia, and also Samuel Alito and Clarence Thomas), with the help of Kennedy, are indeed driving American jurisprudence in a decidedly conservative direction, but in a subtle and gradual manner, gentle in a way, and attentive to public opinion mood swings, but also hard to detect and therefore hard to respond to.

For example, by and large this year’s decisions – including those regarding gay marriage – were framed in a way that highlighted the primacy of states’ rights, which conservatives feel must be protected from what they perceive as the “encroachment” by the federal government. “The Court’s decision [in the DoMA case] does not directly affect state law,” says A. E. Dick Howard, Professor of Law and Public Affairs at the University of Virginia School of Law. “The decision’s federalism reasoning implies that states are free to decide whether to recognize same-sex marriage or not.”

In another landmark case that was debated this spring (Shelby County v. Holder), Roberts, Scalia, Alito, Thomas and Kennedy struck down a key provision of the 1965 Voting Rights Act, considered one of the most important legislations of the civil rights era of the 1960s. Signed into law by Democratic President Lyndon B. Johnson only a year after the passage of the Civil Rights Act, it outlawed discriminatory practices at the voting booth. “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color,” reads Section 2 of the law. At the time, several states especially in the South required residents to pass literacy tests and or pay hefty poll taxes before they could vote, in an attempt to discourage African Americans, generally less educated and less affluent than the whites, from casting their ballots. Now, though Congress renewed the Voting Rights Act for the last of four times in 2006, the Court has invalidated a key part of it, a formula that establishes a list of states and localities with a particularly dreadful history of discriminating against minorities and requires them to clear with the federal government all desired changes to voting laws. Once again, says Professor Howard, “The opinion proceeds from two premises: (1) the states’ broad autonomy in the federal system, and (2) the fundamental principle of the states’ equal sovereignty in the nation. The Court’s majority sees the Voting Rights Act as ‘sharply departing’ from those principles.”

In short, both in cases whose conclusion generally appealed to liberals, such as DoMA and Prop 8, and in those that catered to more conservative tastes, such as the Voting Rights Act, the Court proceeded from the premise that states’ rights must be defended from Washington’s overreach. An approach that was evident even in last year’s Obamacare decision. If Chief Justice Roberts did indeed uphold that law’s constitutionality, he rejected the government’s argument for doing so; that under the Constitution’s Commerce Clause Washington has a right to regulate interstate commerce and therefore health insurance markets. In this regard, even then he took a step toward restricting, not expanding, the powers of the federal government.

Another example of this court’s slow but steady march toward a more conservative jurisprudence is the decision in the Fisher v. Texas case, which was expected to determine the future of affirmative action, a federal law that allows colleges and universities to consider race and gender as part of a candidate’s application package in an effort to increase diversity in their student body (conservatives have long condemned this policy as a form of “reverse racism”). In the end, the justices decided not to decide on the case, but, in a ruling that, on the surface, appeared surprisingly modest in scope, they used language that will greatly limit the ability of higher education institutions to implement affirmative action policies. “It is clear that, as of yet, there are not five votes in the Court to declare race to be impermissible as a factor in university admissions,” says Professor Howard. “But the Court’s remand tightens the standards to be applied by lower courts in affirmative action cases.”

The apparent contradiction of some of the Court’s decisions this year, supporting gay marriage with one hand while striking down one of the country’s major civil rights legislations with the other, can also be viewed in a different light. “To some extent, the results can be reconciled with public opinion,” says Gerard Magliocca, Professor of Law at the McKinney School of Law of Indiana University – Purdue University. “Maintaining extraordinary voting protections in some states and upholding the Defense of Marriage Act were not supported in polls, whereas declaring that all states must permit same-sex marriage was also unpopular.”

Whether or not it is part of a conscious strategy to advance a conservative agenda, this responsiveness to the moods of the American electorate plays into the same long-term game. With people drawn toward the more high-profile cases and generally satisfied with how the justices rule on them, the Roberts court has a free hand in tweaking less prominent but by no means less consequential ones to its taste, for example siding with business and corporate interests and organizations such as the Chamber of Commerce in the vast majority of disputes that involve them. According to data analyzed by the Constitutional Accountability Center, a progressive think tank, the Chamber has won, since the installment of John Roberts as Chief Justice in 2006, 69% of its cases overall. This year, it prevailed in 14 rulings out of 17.

Liberals enthralled by the Supreme Court’s latest gay marriage rulings must remember that all that glitters is not gold.

 

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