The Activist Roberts Court, 10 Years In » 420MedBook Social Network
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Posted: 2015-07-05 04:00:00

What is the most useful way to understand the direction of the Supreme Court 10 years into the tenure of Chief Justice John Roberts Jr.? After a series of high-profile end-of-term rulings that mostly came out the way liberals wanted, it is tempting to see a leftward shift among the justices.

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 Act 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 hard-line conservative activists trying to win in court what they have failed to achieve through legislation.

And 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 to 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.

In this light, “the string of liberal ‘victories’ represents disasters averted, not new frontiers discovered,” wrote Garrett Epps, the Supreme Court correspondent for The Atlantic.

Yet many times over the past decade, the disaster was not averted. All too often, the conservative majority has changed the law to disfavor the less powerful. Whether the issue is racial or gender equality, voting rights, women’s reproductive freedom, access to the courts or the rights of criminal defendants, the court has often ruled against those most in need of its protection.

At the same time, the powerful are given a helping hand. As the most business-friendly court in decades, it has ruled again and again in favor of corporate interests. And 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. But that just means he was doing his job.

This term’s health care case, King v. Burwell, was an embarrassing farce that tried to block federal health-insurance subsidies through an intentional misreading of four words. In his ruling, the chief justice seemed to run out of patience with this political attack. “In every case we must respect the role of the Legislature,” he wrote, “and take care not to undo what it has done.”

This is not a radical position, or even a liberal one. What is remarkable is not that Chief Justice Roberts wrote the opinion, but that three conservative justices refused to join him.

The next term will again reopen issues of rights and freedoms, including some that have been long settled. The court has already agreed to hear major disputes over the meaning of “one person, one vote,” the constitutionality of requiring nonunion members to pay union dues, and, for the second time in three years, affirmative action. The justices may also consider challenges to new laws passed by Republican-led legislatures making it harder for poorer people to vote and for poorer women to have access to abortion.

Justice Anthony Kennedy, who holds the key vote in most closely divided cases, may again be the one to resolve these questions. As many Americans were reminded over the past month, that is a sword that cuts both ways.

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