The pendulum exerts a powerful force in
American society: whenever an extreme position gains too much sway over one of our
institutions, a countervailing trend sets in [1]. That may be happening now in the
Supreme Court, which at least since Bush v. Gore in 2000 has moved steadily to
the right.
I am encouraged in my hope by the
philosophy expressed by Justice Stephen Breyer in his 2010 book Making
Our Democracy Work: A Judge's View. He emphasizes that the Court
historically has always had to strive to re-earn its reputation whenever it has
strayed too far from the mainstream. Keeping its credibility, he says, depends on three principles:
• Adhering to traditions slowly accumulated over
centuries—for example, respect for established precedent and care in deciding
cases on the narrow basis of points of law brought to it, without expanding
them from the bench.
• Steering a course between too-fettered
originalism and unfettered subjectivism.
• Respecting the
roles in the system of diverse other players: legislative bodies, the Executive
and its agencies, lower courts, and the public.
The current Court is due for a return
to these principles. Its first
seven years (2005-2012) are characterized by Marcia
Coyle in The
Roberts Court: The Struggle for the Constitution as dominated by
"a confident conservative majority with a muscular sense of power, a
notable disdain for Congress, and a willingness to act aggressively." She singles out three high-profile
decisions in that period in which the Court distinctly parted from Breyer's
dicta.
One of
those decisions reversed a century of judicial precedent that had held the Second
Amendment's right to bear arms is not an individual right but—in the words of
that Amendment—is associated with a "militia, necessary to the security of a
free state." Another struck
down the very limited school-integration programs of two cities, ringing a
death knell for almost a half-century of such programs. Of the three decisions, however, the one I believe most
illustrates the Court's swerve to extremism was Citizens United v. FEC.
For
over a century, Congress and various state legislatures had tried to limit the
effect of large amounts of money on the democratic process. Most recently, the 2002 McCain-Feingold
Act prohibited the use of corporate and labor-union treasury funds to pay for
ads supporting or opposing federal candidates within certain time periods
before elections.
In the
run-up to the 2008 presidential election, an ultra-conservative organization,
Citizens United, produced "Hillary: The Movie." It brought suit against the Federal
Election Commission on very narrow grounds, seeking to establish only that the
movie and ads for it were not subject to McCain-Feingold proscriptions; rather,
it claimed that they were merely protected political speech. For fear of losing, the suit very
carefully avoided challenging the constitutionality of either the Act itself or
any precedent decisions concerning campaign finance.
After
the case progressed to the Supreme Court and was argued there, the Court unexpectedly
ordered a re-argument in its following term, asking the two sides to address
whether the Court should look at the validity of underlying laws and
precedents—an unusual request because that broader question had not been
addressed or adjudicated in the lower court. After re-argument, the Court invalidated McCain-Feingold's
ban on use of corporate and union treasury funds for electioneering purposes,
declaring that there can be no limits on such expenditures as long as they are made outside of candidates' campaigns.
In coming to its decision, the Court violated Breyer's principles in at
least three ways: it unilaterally expanded the original question that had been
brought to it; it paid no deference to a century of legislative efforts at the
state and federal levels to limit the influence of money on elections; and it
reversed a long history of judicial precedents supporting that
legislation.
Adverse
reaction was immediate and bipartisan.
Senator McCain called the ruling "The most misguided, naïve,
uninformed, egregious decision of the United States Supreme Court, I think, in
the twenty-first century."
President Obama excoriated the Court during a State of the Union
address—with Chief Justice Roberts in attendance—saying, "Last week, the
Supreme Court reversed a century of law to open the floodgates for special
interests … to spend without limit in our elections. "
The
visceral reaction to Citizens United and
other Roberts Court decisions might have reminded the Court—particularly Chief
Justice Roberts—of Breyer's assertion that it must constantly re-earn its
esteem. That may explain why at
the end of the 2011-2012 term, when a 5-4 majority was about to strike down the
very core of the Affordable Care Act—the signature piece of legislation
sponsored by a popular sitting president—Chief Justice Roberts felt obligated
to switch sides. He thereby not
only saved almost all of the Act from a judicial evisceration, but partially
redeemed the reputation of the Court from charges of extremism.
Could
the ACA decision signal a deceleration or even reversal of the pendulum? High-profile decisions at the end of
the 2012-2013 term were mixed, yet they possibly indicate so:
• The Court tilted a bit to the political left when
it overturned, as an unconstitutional deprivation of equal rights, the part of
the Defense of Marriage Act that denied federal benefits to same-sex couples
legally married in a state.
• It punted on trial- and appeals-court decisions
that California's Proposition 8, which forbade same-sex marriage, is
unconstitutional, doing so on the narrow ground that those who appealed the
trial court's holding had no standing to do so, thereby letting that court's
decision stand.
• It also punted on affirmative action at the
University of Texas by ordering a lower court to determine whether there was a
valid and well-applied state rationale for the criteria used.
• In one voting-rights case it said that Arizona
could not add a requirement mandating a proof of citizenship to the existing
uniform federal voter-qualification standards.
• On the other hand, another voting-rights
case went the other way, virtually eliminating almost a half century of
legislation requiring federal pre-approval of changes of election procedures in
jurisdictions having histories of discrimination. This, despite four Congressional reauthorizations of the
original 1965 act, the last in 2006, when tens of thousands of pages of
investigatory material were compiled and the vote was an astonishing 98-0 in
the Senate and 390-33 in the House.
It thus gave shocking evidence supporting Coyle's charge that the Court
has "a notable disdain for Congress."
Many of
these decisions were 5-4, indicating that the Court remains on a cusp. Nonetheless, comparing them to the
three right-leaning decisions of earlier years focused on by Coyle (see above)
might encourage one to feel that the Court is becoming more moderate. A lengthy front-page
analysis
in the New York Times last week argues otherwise, contending that Chief
Justice Roberts continues to pursue a very conservative agenda by guiding the
Court through a Machiavellian series of zigs and zags while moving it
inexorably to the right.
Even if the Court's pendulum is not yet reversing its swing, I cling to
my optimism that it will do so sooner rather than later—say within this
decade. Although the court is not
supposed to be a political institution, it does respond to political and
societal pressure. I think that
time is near.