international analysis and commentary

The highest judges and American society


What a difference a year makes. A year ago, religious conservatives were rejoicing and liberals thought the sky was falling.

Today, liberals are rejoicing and religious conservatives think the sky is falling. 

Amidst all the liberal paeans to the Supreme Court, and conservative calls for impeachment, it’s worth remembering that the two much-ballyhooed rulings at the end of the Court’s term – upholding Obamacare and striking down gay marriage bans – are hardly representative of its output. In fact, on the following (and last) day of the term, the justices disallowed environmental regulations enacted by the administration of President Barack Obama as insufficiently solicitous of business and affirmed a rather gruesome execution protocol, then announced that in the next term they would revisit – and probably overturn – long-standing liberal precedent on race-conscious college admissions, union dues, and the one-person one-vote rule.

So, it’s somewhat misleading to assert that the Court somehow got more liberal this year – let alone that this represents a long-term phenomenon. What the liberal bent of several decisions this year – especially the Obamacare and gay marriage cases – does show is the difficulty of defining conservative judicial philosophy: Conservatives like judicial restraint. Except, of course, when they don’t. 

In Obergefell vs. Hodges, the same-sex marriage case, Chief Justice Robert’s dissent laid out compellingly the argument for a limited judicial role. Roberts hints repeatedly that he believes same-sex marriage should and will, in fact, be allowed; he just thinks it should occur through the democratic process. The problem is that this argument puts the Court into exactly the sort of political decision-making from which Roberts clearly wants to extricate it.

This reflects a central tension in the Constitution, which constructs not a simple democracy but rather a balance between majority-rule and both procedural constraints – the much-touted system of “checks and balances” – and substantive constraints in the form of individual rights. In short, the Constitution establishes explicit limits on the political process – and it has long been settled that the Court, standing outside the political system, is in fact the main arbiter of that system. For the justices to defer to the political process may make them look (especially in the eyes of their cheerleaders) more democratic. This may well be true, but it is also less strictly constitutional and, ironically, more political.

In the name of judicial deference, the Court has historically chosen to take itself out of many constitutional disputes under a variety of jurisdictional rules, some derived from the Constitution but many – ironically, given that this is all done in the name of “strict construction” and opposition to judicial activism – admittedly simply made up by the justices.  The fact is that such not-deciding is simply another way of deciding, especially as the Court’s decisions “not to decide” generally involve individual rights claims against the government. In short, there is an inherent bias in the Court avoiding issues before it – in favor of the exercise of power, and against the recognition and protection of individual rights, especially of those least powerful.  

When such claims arise – like the right not to be denied access to a lunch counter because of one’s race, or not to be executed in a cruel and unusual fashion – if the Court decides that its role is not to vindicate it but rather to defer to the political process, it has made a political decision, and a decision, at that, irrevocably not just to delay, but to deny, justice. And this is especially so if the Court denies ruling, as Roberts suggested on gay marriage, out of political calculation. 

The doctrine of judicial restraint, then, is hardly apolitical or non-ideological:  It is inherently conservative.

Assume that, if the Constitution doesn’t explicitly say so, you don’t have a right.  That’s convenient if you don’t believe in rights, because the Constitution is an intentionally brief document. To remedy this, its original opponents insisted on the addition of a Bill of Rights, including what is now the Ninth Amendment, which states quite clearly that we possess other rights beyond those enumerated in the Constitution. Conservatives, of course, don’t take this – and similar provisions of the Constitution – literally because, well, it would give people more rights, and they don’t like that.

However, they do support other additions: for example the right of corporations to claim religious exemption from laws of general application (created last summer by the Supreme Court in another Obamacare-related ruling). Or the “right” of states to equal treatment by Congress rather than being singled out for their historically unequal treatment of their own citizens (invented two years ago in striking down the Voting Rights Act designed to protect African Americans). It’s thus very hard to take seriously conservatives’ protests against judicial activism and the creation of “new rights.”

That politics underlie all such decisions, despite the self-serving claims of advocates of “restraint” to the contrary, was made clear with the gay marriage and Obamacare rulings: Regardless of the judicial thinking behind them, conservatives denounced them both because they turned out political wins for liberals.

In King vs. Burwell, the Obamacare case, Chief Justice Roberts, writing for himself and the four liberals, upheld yet again the health reform law on the basis of the rather unstartling conclusion that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”  For Roberts, this opinion adheres precisely to the same objective of judicial deference – or, as Roberts put it in his confirmation hearings, “modesty” – that he expressed in his Obergefell dissent. But in this case, he was ripped by outraged conservatives for the fact that this method led to the survival of President Obama’s signature accomplishment. 

In the end, justices of both persuasions impose their own political preferences on the law. Since, for the foreseeable future, most of the time, the conservatives have more votes, conservatism is likely to remain the overarching imprint of the Roberts’ Court. Decisions such as the ones on Obamacare and gay marriage are better understood as the odd exception, rather than a lurch leftward.