The Week the Supreme Court Came Out of the Closet

Now that a little time has passed, we can have a bit more perspective on the important cases handed down by the Court during the last week of this year's term. Looking at the cases as a group reveals the true colors of the Supreme Court of the United States.

Ever since the "legal realists," wrote in the 1930s that judicial decision-making was more ideology than law, academics, judges, and court watchers have debated how much a role personal predilection plays in judicial decisions. When it comes to lower court judges, state or federal, there is an honest argument to be had over the degree to which personality rather than prior law generates decisions. After all, every judge in America not on the Supreme Court has to follow the Justices' decisions on what our Constitution means.

No one, however, looks over the shoulder of the Supreme Court of the United States. Technically, the people of the United States can reverse the Court's decisions through constitutional amendment but that is extremely unlikely to happen and does not serve as a constraint on the Justices. Moreover, our Supreme Court has the following institutional characteristics that virtually guarantee personal preference will triumph over preexisting law:

1) The Supreme Court is the only highest court in the world where the Justices have life tenure;

2) Their decisions are functionally unreviewable (as opposed to say Canada's Supreme Court whose decisions can at times be trumped by vote of the legislature);

3) The Justices successfully stay out of politics (the Justices' arguments aren't televised, and they never answer to the media or any other politician); and

4) The main sources of constitutional law (such as due process, equal protection, and free speech) are extremely vague and historically contestable.

These characteristics insure that the Justices, being human, and given unreviewable power for life, will inevitably equate the law with what they think the law ought to be, and that's what happened during the last week of this year's term.

The five most conservative Justices (Scalia, Thomas, Kennedy, Roberts, and Alito), all voted to invalidate Section 4 of the Voting Rights Act even though the VRA was adopted by a unanimous vote of the Senate and an overwhelming vote by the House. The conservatives were completely indifferent to the language of the 15th Amendment which gives Congress the power to "enforce" that Amendment through "appropriate" legislation.

Four of the conservatives who struck down the VRA, all except Kennedy, would have upheld the federal Defense of Marriage Act (DOMA) primarily on the basis that Congress not the Court should resolve controversial moral issues. Those dissenting votes were announced just one day after the same Justices overturned Congress' judgment that the VRA was still necessary.

Meanwhile, the moderates (Ginsburg, Breyer, Sotomayor, and Kagan), voted to overturn DOMA paying little attention to Congress' mid-nineties judgment that the government shouldn't recognize same-sex marriages while at the same time dissenting in the VRA case despite the fact that Congress' 2006 judgment was based on old data from the 1960's. One wonders why the moderates think Congress' judgment about voting rights should receive more deference than its judgment about federal benefits and marriage. A federal "No Polygamy or No First Cousin Act," would have been upheld by the moderates. There certainly may be legal differences between those hypothetical laws and DOMA, but they would have little to do with the level of deference the Court owes Congress.

In the non-constitutional law world, the Justices voted 5-4 along party lines in three statutory interpretation cases involving corporate liability for discrimination and torts. In all three cases, the conservatives voted to limit corporate liability and the moderates voted to enlarge it.

And then there was Proposition 8. A mixed assortment of Justices voted to turn down the appeal leaving same-sex marriage to the states for now. Why would moderate Justices Kagan, Ginsburg, and Breyer, all of whom voted to overturn DOMA, join the Chief to dismiss the appeal? We'll never truly know but the answer is likely to found in Justice Ginsburg's recent statement that she believes Roe v. Wade was a mistake because it resolved the abortion question in "one fell swoop." I have written that this fear of backlash to a national overruling of the laws of 38 states on same-sex marriage is sensible even for people (like me) devoted to equality for gays and lesbians. But, that fear has nothing to do with constitutional law and everything to do with political calculus. One has to believe Justice Kennedy, who voted to hear the appeal, wanted to put his stamp of approval on same-sex marriages nationwide with little concern for political backlash.

Speaking of Justice Kennedy, he was the only Justice to get his way on DOMA, voting rights, and affirmative action. The last time the Court turned to affirmative action, the four most conservative Justices made it clear they would prohibit racial preferences across the board in America, but they couldn't get Kennedy's vote. This time, the Court ducked the issue sending Fisher v. Texas back to the lower court on the grounds the court didn't apply prior law correctly. There is little doubt this happened because the Justices are split 4-4 on this issue (again along partisan lines) with Kennedy less willing to do away with affirmative action than the conservatives but also less inclined to uphold it than the moderates. Thus, the Court put off resolving that question probably until Justice Kennedy decides to join one of the groups of four or the balance on the Court changes.

Over the last four days of this year's term, the Court dealt with same-sex marriage, voting rights, affirmative action, and corporate liability. The Justices voted their value preferences in every case. The legal realists wouldn't be a bit surprised.

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