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In the last week of June, a sharply divided Supreme Court ruled largely in favor of the federal government’s position in two of the last term’s major cases, upholding important provisions of the Affordable Health Care Act and striking down significant parts of Arizona’s draconian immigration law.
But along the way, the justices expressed an unusual level of distrust in and disrespect for the other branches of government. In the health care oral argument, for example, Justice Anthony Kennedy mused that when the political branches step beyond what the Court’s existing cases “have allowed,” lawmakers face “a heavy burden of justification to show authorization under the Constitution.” The traditional presumption is that federal statutes are constitutional until proven otherwise. In the Arizona case, Chief Justice John Roberts cut off Solicitor General Donald B. Verrilli, Jr.—the government’s chief attorney before the Court—before he could utter a complete sentence.
The justices’ written opinions expressed similar disdain for the rest of the federal government. In the health care cases, Chief Justice Roberts pointedly distanced himself from the wisdom of enacting health care legislation and warned of the danger of congressional overreaching. And in his dissent in the Arizona case, Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel Alito, went far outside the record of the case to denounce the Obama Administration’s decision not to deport young, law-abiding immigrants who had come to the United States as children. During the Reagan administration, by contrast, Justice Scalia was more forgiving. He thought it was up to the president to decide whether to prosecute violations of federal law because such decisions involve “the balancing of various legal, practical, and political considerations, none of which is absolute.”
In the current term, which began in October, the justices have picked up right where they left off. The first case was the re-argument of Kiobel v. Royal Dutch Petroleum, which involved the Alien Tort Statute. In an amicus brief, the solicitor general advanced a nuanced position about when U.S. courts should be open to lawsuits brought by aliens claiming human rights abuses overseas. His position represented textbook balancing of the sort Justice Scalia once called for: the administration wanted to further U.S. commitments to the rule of law and protection of human rights, but it also sought to reduce friction with foreign governments that might emerge if our courts decide cases involving their citizens and territories.
Obviously, different administrations might strike that balance differently. (Disclosure: I represented a human rights group and its clients who sued torturers now living in this country, and we took a broader view of the statute.) But instead of acknowledging that inevitable reality, the justices used it as a basis for attacking Verrilli’s argument. “Why should we listen to you rather than the solicitors general who took the opposite position?” Justice Scalia asked. Chief Justice Roberts offered a similar view.
In a narrow sense, Justice Scalia is right: the scope of the Alien Tort Statute cannot shift with the change in administrations. Since the time of Marbury v. Madison, it has been “emphatically the province and duty of the Judicial Department to say what the law is.” But that province and duty can surely benefit from the informed views of the executive branch, particularly in a case that involves foreign affairs, which is emphatically not an area where the courts have expertise. One of the major assets the solicitor general has is the ability to gather information and insight from the hundreds of agencies and offices within the federal government, and his considered views are always worth listening to, even if the justices ultimately adopt a different position. In the past few years, however, the Court has repeatedly treated the lawyers from the solicitor general’s office not as colleagues trying to get the law right but as partisan foils.
When the justices belittle the political branches, they hamper the government’s ability to solve our most pressing problems.
The consequences of the Court’s disdain may be far-reaching. Many of the issues that come before the Supreme Court raise hard questions that lie at the intersection of constitutional principle and practical politics. If the justices belittle or ignore the views of the political branches, they may hamper the government’s ability to solve our most pressing problems.
To take just one example that the Court will soon confront yet again, consider Congress’s power to vindicate individual rights, particularly the right to vote. The Reconstruction Amendments each give Congress power to enforce the Amendments’ substantive directives (for example, the Fourteenth Amendment’s equal protection clause or the Fifteenth Amendment’s ban on race discrimination in voting). The Warren Court rejected the argument that Congress could act only after the courts had condemned a particular practice. That cramped construction, Justice William Brennan explained, “would depreciate both congressional resourcefulness and congressional responsibility for implementing the Amendment[s].” However, many justices on the current Court take a contrary view, treating the Amendments’ use of the word “enforce” as a limitation on congressional power rather than an express recognition of Congress’s special authority.
But if we leave questions of voting rights solely to the courts, to be decided in individual lawsuits, we may end up falling far short of the Constitution’s commands. One of the most striking examples of how this individualized approach falters is the experience with minority disenfranchisement in the South and Southwest prior to the passage of the Voting Rights Act of 1965. It took countless hours to litigate cases on behalf of individual voters and small groups of voters in discrete jurisdictions. And even when those lawsuits succeeded, recalcitrant jurisdictions often developed new ways to minimize minorities’ political power—ways that could be challenged only after an election had occurred.
In the five years after the Act was passed, executive enforcement efforts led to nearly as many African Americans registering to vote in six southern states as had registered in the century since the Fifteenth Amendment had been ratified. And the special pre-clearance provisions of the Act have protected the rights of millions of minority voters against novel forms of disempowerment, from voter purges to unfair reapportionments. Congress decided four times, most recently in 2006, that the Act’s special provisions should be amended and extended.
The Supreme Court, however, has adopted narrow readings of the Act, suggesting that those readings are required in order to avoid striking down the Act as exceeding Congress’s power. The Court’s suspicions are unjustified. Whatever its imperfections, the Act remains what President Lyndon Johnson called it: “One of the most monumental laws in the entire history of American freedom.”
The Roberts Court’s skepticism of the political branches and federal power maps disturbingly onto the contemporary conservative agenda. If that agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But as long as the public remains divided, the Court risks being perceived as simply another partisan establishment. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education (1954), a case that stands for equality and the inclusion of all Americans in our most important institutions. Only time will tell whether the Court will retain that status given the choices the Roberts bench is making.
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