After winning the biggest Supreme Court victory in a generation, progressives should be joyous at the expansion of the nation’s long troubled health care system (and the bitter reaction on the right). But instead, some are spinning this great outcome as laying the groundwork for future defeats. Their reasoning is that Chief Justice John Roberts’ opinion limiting the Commerce Clause will come back to hurt progressive interests. But the current conservative Court majority has shown time and again – most prominently in Citizens United
– that it needs no legal precedent to throw out laws it doesn't like. If a broad reading of the Commerce Clause gets the court majority to where it wants to go, that’s the opinion it will issue. It may be psychologically comforting to think that legal precedent governs the nation’s highest court, but the record says otherwise.
I was astounded to see so many progressive commentators and legal scholars interpret Justice Roberts’ health care decision as creating the legal edifice necessary to rein in future government programs. Such an analysis assumes a degree of legal integrity contrary to the Supreme Court’s long tradition, and particularly counter to even recent rulings by the Roberts court.
Roberts upheld the health care law not because he sought to use the decision to build a stronger conservative legal edifice – he would hardly use the biggest case of our time for that purpose – but because he needed to maintain the Court’s integrity for future controversial rulings. And given the age of the current justices (Antonin Scalia & Anthony Kennedy are 76, while Ruth Bader Ginsburg is 79), Roberts’ alleged “edifice” would likely require the backing of new justices.
The biggest ruling in the next judicial session concerns the future of affirmative action. Does anyone believe that the Roberts Court will rely on past legal precedents to uphold a practice that former Justice Sandra Day O’Connor opined at Harvard Law School in 2008 should last another 20 years?
There’s no way affirmative action in public colleges universities survives this ruling, decades of case law notwithstanding. The Supreme Court would not have taken this Texas case
of a white student challenging race as an admissions factor if it wanted to keep the longstanding practice.
The chief question is whether the Court will also abolish race-based affirmative action in all government programs and in private schools. However far the Court extends its affirmative action ban, its ruling will be insulated from the attacks it would have received had Roberts also voted to overturn the health care law.
The Court will also decide whether corporations can be sued under international law
for human rights violations. The case, Kiobel v. Royal Dutch Petroleum Co
, was brought by plaintiffs from the Ogoni region of Nigeria against Shell Oil for its alleged complicity in serious human rights abuses.
If you believe legal precedents influence the Court, then you will expect the conservative majority’s view that corporations should be treated like human beings to lead to a ruling upholding such suits. After all, individuals committing such acts are not shielded from liability.
But there is no way this Court is going to allow multinational corporations to face federal court trials under international laws.
DOMA and Prop 8
These are among the most highly anticipated Court rulings, but review has yet to be granted in either case. Should review be granted and the case heard by the current Board, Justice Kennedy’s swing vote will be based on personal feelings, not legal precedent.
The real question for the Roberts Court is how long the current majority will last.
Justice Kennedy may be holding on in the hope Obama loses in November, so that a fellow Republican can replace him. It is certainly possible that Kennedy, Scalia and Thomas all stay on through an Obama second term, but unlikely. If Obama gets a chance to replace both Ginsberg and one of the conservative three, the Roberts majority will be consigned to the dustbin of history.
It gets tiring to see weak Democratic Presidents try to rally their base out of fear of future Supreme Court choices. But this November the fear is real, and it will take a political solution to drive the most conservative court since the 1930’s out of power.
Randy Shaw is the Editor of Beyond Chron. He has practiced law in California since 1982.