Students in my constitutional law course are usually surprised, and often skeptical, when I propose that the most important case they will study is not about abortion rights, the death penalty, or the status of Guantanamo Bay, and does not concern Ten Commandments monuments, Christmas displays, or internet pornography, but instead involves an early-nineteenth-century tax-collection dispute between the state of Maryland and the cashier of the Second Bank of the United States.
I am happy to report that, this past year, in its biggest cases, the Supreme Court proved me right. It reminded us all that the important questions to ask about the Court and the Constitution are not whether one justice is mad at another, or who gets the most laughs during oral argument, or how often the Chamber of Commerce wins. They have to do instead with the role of unelected, politically unaccountable justices in enforcing the various ways the Constitution allocates, divides, structures, and constrains the authority of governments. In constitutional law, the question is not so much “What is to be done?” as it is “Who decides?”
The questions presented in that most important case, McCulloch v. Maryland in 1819, were whether Congress had the power to incorporate, and Maryland had the power to tax, the Bank. The former issue had been hotly debated three decades earlier. Alexander Hamilton, then the Secretary of the Treasury, had argued for the Bank, urging that the new nation’s powers should be “construed liberally, in advancement of the public good.” James Madison had insisted with no less force that, whatever the benefits of a national Bank might be, the federal government possesses and may exercise only those specific powers enumerated in the Constitution’s text.
Madison lost, the Bank was approved by Congress, and Washington signed the relevant bill. Then as now, big banks and corporations were often unpopular, and the Bank’s charter was allowed to lapse in 1811. However, the War of 1812 prompted many to re-examine their views, and the bill creating the second Bank was signed into law in 1816 by the first Bank’s strict-constructionist foe, then-President Madison. A few years later, in the McCulloch case, the Supreme Court upheld the Bank’s creation and vindicated Hamilton, presciently observing that “the question respecting the extent of the powers actually granted [to the national government] is perpetually arising, and will probably continue to arise so long as our system shall exist.”
And so it has, as the Supreme Court’s last term so strikingly illustrated. What Justice Sandra O’Connor once called the “oldest question of constitutional law”—that is, where have “we the people” lodged the power to regulate and rule?—is no less relevant, pressing, and difficult today than it was in 1819, or in 1787.
If the previous term was, relatively speaking, a bit sleepy, this one was the third-branch equivalent of Avatar or The Avengers, and its final week was one of the most anticipated in years. On the term’s final day, June 28, the indispensable “SCOTUSblog” logged over three million hits and had more than 800,000 contemporaneous readers following their live coverage of the insurance-mandate ruling. (Unlike some major news outlets, SCOTUSblog got the story right.) Its coverage was CoveritLive’s second most popular live web event all year, behind only ESPN’s coverage of the NFL draft.
The justices in the Court’s 2011–12 term engaged hard questions that implicate present-day politics, cutting-edge technologies, huge swaths of our economy, international relations, and impending elections. They considered protections for criminal defendants, limits on police, the rights of property owners, freedom of speech, and—of course—fine points about the workers’ compensation coverage provided by the Outer Continental Shelf Lands Act. They heard cases involving the ownership of Montana riverbeds, the treatment of non-ambulatory pigs, the patentability of laws of nature, and the political status of Jerusalem. And, in a wide variety of ways and contexts, they identified and enforced the boundaries and borders of power, and its allocation between Congress and the executive, states and the nation, church and state, government and citizen.
For all of this year’s fireworks, surprises, and controversy at the Court, there was also continuity, including in its personnel. But even this non-change is noteworthy: For more than a decade, starting with Justice Stephen Breyer’s confirmation in 1994, the Court’s membership did not change. Then, between 2005 and 2010, it went through its biggest shake-up since the Nixon administration, as four new members joined the Court, including Chief Justice John Roberts. This past term, the seventh of Roberts’ tenure as Chief Justice, was the second with the current roster.
In the 2011–12 term, we saw more of the Court doing less. Its docket continued the gradual, steady, and now substantial decline that began after William Rehnquist replaced Warren Burger as chief justice in 1986. In the early 1980s, the Court was deciding about 150 cases a year. In the just-ended term, the justices decided only sixty-five cases on the merits and after oral argument, ten fewer than the year before and the fewest in recent history. No single factor explains the change, though revisions to the rules governing the Court’s jurisdiction, a convergence of views among federal judges sitting on the different courts of appeals, the straightening up over time of a number of once-disheveled areas of law, and, we can hope, a greater sensitivity to the dangers and downsides of regular Supreme Court interventions have probably played a part.
The standard, if shopworn, storyline about the Supreme Court involves hot-button issues, close votes, swinging or switched votes, partisan divisions, and stinging dissents. In fact, though, if there were a “judicial-amity index”—a function, maybe, of the number of Supreme Court decisions and the number of dissenting votes in each case—it would reveal a relatively irenic institution at work and a level of agreement that complicates the standard, simplistic “liberals v. conservatives” and “Republicans v. Democrats” accounts. Over the past five years, about half of the Court’s final decisions have been decided either unanimously or eight to one, and even more (55 percent) fit that description in this last term. Four of the justices never dissented solo, and even the leader in lonely dissents, Justice Ginsburg, wrote only three.
Only fifteen cases followed the five-to-four script and of these, five resulted from Justice Kennedy voting with the other four Republican appointees and five from his siding with his Democratic colleagues. (The other five were decided by five different line-ups.) His place at the Court’s center sometimes prompts the observation that “it’s Kennedy’s world; we’re just living in it,” and while it’s true that he was in the majority of divided cases almost all (88 percent) of the time, so was the Chief Justice (86 percent). The two justices nominated by President George W. Bush, John Roberts and Samuel Alito, nearly always (91 percent of the time) agreed, but even the two who agreed least often—Antonin Scalia and Ruth Bader Ginsburg, who are known to be close friends—did so more often (56 percent) than not.
It is common for Court watchers and critics to look for animating themes and big-picture takeaways when reviewing and previewing its work. On the political left, it is often charged that the Court under Chief Justice Roberts is “pro-business,” the “Chamber of Commerce Court,” or—as one pundit complained—the “court of, by, and for the one percent.” These characterizations, however, are both superficial and inaccurate. It’s not the case that “business” always wins, and, in any event, that “business” wins a case in the Supreme Court should only be troubling if, on the legal merits, it should have lost.
Another storyline that attracts many liberal-leaning commentators casts the Chief Justice and his ideological allies as activists—“radicals in robes”—dead set on obstructing the Obama administration, undoing the Great Society and New Deal, and retrieving a Tea Party-type “constitution in exile.” While useful for a campaign memo bulletpoint or as fundraising-appeal red meat, this account is nearly useless as a description or explanation. Under Chief Justice Roberts, the Court’s doctrines have moved to the “left” in some areas, to the “right” in some others, and—in many—stayed pretty much as they were. And, under his leadership, the Court has been less likely, not more, than at previous times to invalidate federal laws or to overrule precedents.
The “activist” label usually says more about the preferences and goals of the one attaching it than it does about the decision to which it’s attached. Almost everyone agrees that justices should not substitute their preferences for the law and that Congress and the President are entitled to respect and deference by the Court, but hardly anyone thinks the Court should simply rubber-stamp federal statutes and executive actions. As Justice David Souter once observed, “Judicial activism is when the court rules against you.”
The two cases that attracted by far the most attention this year were the constitutional challenges to an Arizona law targeting unlawful immigration and to the federal Patient Protection and Affordable Care Act, or “Obamacare.” In addition to these, the Court’s higher-profile docket included—as it usually does—a variety of cases involving protections for criminal defendants, the authority of police and prosecutors, death-penalty appeals, federal preemption of state law, intellectual and real-property rights, and the freedoms of speech and religion. And, of course, there were dozens of cases dealing with statutory interpretation and the nuts and bolts of litigation, the kinds of cases that the late Chief Justice William Rehnquist used to describe, quoting Thomas Gray’s Elegy Written in a Country Churchyard, as “flower[s] . . . born to blush unseen.”
In any other year, the term’s criminal-law cases might have been the stars. The Fourth Amendment promises that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” While this text speaks clearly to the pre-Revolution abuses of general warrants by officials looking for our liberty-loving founders’ hard-smuggled goods, applying it to photo surveillance, wiretaps, and drug dogs, or to thermal imaging, satellite tracking, and data mining, has been and remains challenging. As our capacity to gather information increases—along with our apparent eagerness to post, share, text, and tweet it—our security and expectations of privacy seem to decrease. As more and more of what we care about is stored in “the cloud,” rather than in wharf-side warehouses, it is less clear what counts as a search, and what makes a search unreasonable.
In United States v. Jones, the government had, without a warrant, attached a GPS device to the car of a nightclub operator suspected of drug trafficking and used it to track him for a month. If following a suspect’s stroll through the city is not a search, as the courts have ruled before, should it be when investigators use a tracking device, satellites, and computers to gather the same information? All nine justices concluded, though for very different reasons, that this ploy violated the Fourth Amendment. Justice Scalia and four others provided another illustration of the fact that “originalism” is not simply a vehicle for law-and-order conservatism, ruling that the installation of the device should be treated like a warrantless physical trespass that would, no doubt, have offended the founders. Another group of justices, however, relied instead on the privacy expectations of “reasonable” people today.
So, the unanimity with respect to the bottom-line in Jones should not obscure a significant disagreement about methodology—should the Fourth Amendment draw its meaning from the understandings, practices, and experiences of those who ratified the Bill of Rights, or from contemporary, and changing, sensibilities? And, going forward, we can expect closer and harder cases at the intersection of regulation, innovation, and privacy.
The Constitution also guarantees that “in all criminal prosecutions” people have the right to “have the Assistance of Counsel for . . . defence.” And while this text might evoke images of Atticus Finch and Perry Mason, jury-swaying orations and witness-wilting cross-examinations, the reality of criminal justice today is that more than 90 percent of criminal cases are resolved through plea bargaining. For most, the “assistance of counsel” is needed not so much to negotiate the courtroom as to negotiate a good deal. The justices affirmed as much in Missouri v. Frye and Lafler v. Cooper, emphasizing that plea negotiations are a “critical stage” of criminal prosecutions and that the guaranteed “effective assistance” of counsel includes timely communication and competent advice regarding plea offers.
Another criminal case, Miller v. Alabama, continued a trend in the Court’s enforcement of the Eighth Amendment’s prohibition on “cruel and unusual punishments.” For almost forty years, the idea that “death is different” has prompted the justices to focus their Eighth Amendment efforts on the death penalty and to defer to legislators, prosecutors, trial judges, and juries when it comes to criminal sentencing more generally. However, in a series of recent cases, a narrow Court majority has been developing a “juveniles are different, too” jurisprudence. In Miller, emphasizing juvenile offenders’ “diminished culpability and heightened capacity for change,” they invalidated schemes that impose mandatory “life without parole” sentences on minors. This ruling could affect thousands of cases, and seems to invite into a much larger domain the close (and expensive, and time-consuming) judicial supervision of sentencing processes that, until now, has been for the most part confined to capital punishment.
Last year was, as Michael McConnell reported in these pages, a “free speech year at the Court,” and this one was, too. United States v. Alvarez revealed yet again, the Court’s rigorously libertarian approach to regulations of harmful, offensive, insulting, and dangerous speech. The entrails of the Court’s case law and the justices’ opinions notoriously speak mixed messages, but it is crystal-clear that this is a free-speech Court. The Court has, usually by wide margins, firmly, even stubbornly, adhered to the rule that only a very few specific and narrow categories of speech may be regulated because of their objectionable content. They recently struck down a law banning depictions of animal cruelty, threw out a money judgment against the founder of the Westboro Baptist Church for the pain caused by his hateful picketing near the funeral of a fallen Marine, and invalidated a California law prohibiting the sale of over-the-top-violent video games to children.
Xavier Alvarez, an official with a California water-management agency, was prosecuted under the Stolen Valor Act of 2005 for lying brazenly about his military service and about receiving the Congressional Medal of Honor. Are such lies, which would seem to contribute little of value to the “marketplace of ideas,” part of the “freedom of speech” protected by the First Amendment? Or, like obscenity, incitement, and threats, may they be targeted for regulation and punishment? The justices refused both to create a general exception from the First Amendment for false statements and to approve the Stolen Valor Act as a permissible response to a special, limited category of lies.
The Court also declined an opportunity to retreat from or revisit their controversial but correct 2010 decision in Citizens United v. Federal Election Commission, in which a five-to-four majority struck down federal regulations limiting political speech and election-related spending by corporations. In so doing, it reaffirmed that the First Amendment is a check on the governmental temptation to tame and shape the public conversation—especially but not only about politics—and that there is no reason why citizens who join together and employ the corporate form should be more vulnerable to censorship. Still, for progressive critics of the Roberts Court, Citizens United has come to play the role that Roe v. Wade plays for judicial conservatives: Its mere mention can serve to denounce all that is wrong with the allegedly “partisan,” “activist,” “pro-business” majority. Although the case is far more often condemned and misrepresented than closely engaged and understood, the misguided notion that the conservative majority has created a new weapon by which the “one percent” and their corporate minions can dominate and distort our elections has traction. In fact, the case vindicated the free-speech rights of associations on both the left and right, and it affirmed a principle that both the Sierra Club and Sam’s Club should endorse, namely, that the government’s power to regulate political expression does not increase simply because citizens have come together to speak through the corporate form.
This helps to explain why, last spring, hopes kindled in some quarters that the justices might reconsider Citizens United. The Montana Supreme Court raised these hopes, and some eyebrows, when it approved a state law that mirrored the one the Supreme Court had struck down. The state court cited special circumstances in Montana that supposedly make political corruption caused by corporate speech more likely, but the Citizens United majority was underwhelmed, stood firm, and summarily reversed the state court, without oral arguments and the usual full briefing, in a two-paragraph per curiam opinion. The minority was equally resolute, and dissented to note their continued willingness to change course. Stay tuned.
Another First Amendment case, like Citizens United, reflects the associational dimensions of the freedom of speech. For thirty-five years, it has been the rule that non-union members cannot be forced to pay for union political activities not directly related to collective-bargaining work. In Knox v. SEIU, a union had imposed a special mid-year assessment to build an “Emergency Temporary Assessment to Build a Political Fight-Back Fund,” but did not give nonmembers a front-end chance to object and opt out. Emphasizing that “any procedure for exacting fees from unwilling contributors must be ‘carefully tailored to minimize the infringement’ of free speech rights,” seven of the justices agreed that a prompt new vote was required, while the Citizens United five went further, and insisted that an up-front opt-in was required, noting that “the First Amendment does not permit a union to extract a loan from unwilling nonmembers even if the money is later paid back in full.”
The term’s two most important cases were National Federation of Independent Business v. Sebelius, which upheld most of the Affordable Care Act, and Arizona v. United States, which invalidated much of that state’s Senate Bill 1070. To these, we should add the Court’s unanimous ruling, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, that the so-called “ministerial exception” letting religious bodies set their own employment standards is required by the First Amendment’s religion clauses.
Almost certainly, First Things readers are by now familiar with the arguments and conclusions in these cases, and in a “roundup” essay like this one could not possibly, and so should not attempt to, present and evaluate them in detail. Particularly with respect to the health-care cases, it will take some time for commentators to move on, past the leaks, gossip, and speculation about rifts, flipped votes, opinion authorship, and the effects (if any) of many outsiders’ transparent efforts to “work the refs.” Nobody, including the justices, expects the ruling to end the political debates and litigation about the Act. It remains to be seen whether and how the striking and potentially game-changing approach taken not only by the four conservative dissenters, but also by the Chief Justice, to the question of Congress’ regulatory power will play out in other contexts. The interpretation of the commerce clause seems up for review. Again, stay tuned.
Certainly, the challenges to the individual mandate did not play out as the experts, or anyone else, expected. It has been three years since then-Speaker Nancy Pelosi contemptuously dismissed questions about Congress’ power to require the purchase of health insurance with an “Are you serious?” As it gradually became clear that the questions were serious, and were regarded as such by many serious people, and after the oral arguments in the Court suggested that more than a few justices were among them, panic and anticipatory outrage set in. What had once been too far-fetched to imagine soon became the new conventional wisdom, and right thinkers everywhere predicted confidently that the conservative “activists” were poised to gut, or invalidate entirely, the president’s signature accomplishment.
This did not happen, of course, and the anti-Roberts outrage quickly moved from the political left to the political right after the Chief Justice provided the fifth vote needed to uphold the mandate, concluding that it could be, and so on balance should be, regarded as a permissible tax and not as an unconstitutional regulatory overreach. This conclusion was seen by some as a capitulation, wrongly putting concerns about the Court’s standing and the Chief Justice’s own legacy above the Constitution’s requirements. Others insisted, though, that it reflected instead appropriate caution and restraint and appreciation for the Court’s status as a coequal, not a supervisory, branch of government.
In any event, and returning to Hamilton, Madison, Marshall, and McCulloch: The health-care cases, Arizona v. United States, and Hosanna-Tabor matter not simply for their political salience, but also because they involved, in different ways, fundamental and “perpetually arising” questions about the Constitution’s structural features and the Court’s role in maintaining and enforcing them. Does Congress have the power—that is, is it among the specific powers vested in Congress by Article I of the Constitution—to do what it did in the Affordable Care Act? And to what extent should the Court second-guess Congress’ judgment that it does? May Congress attach new and burdensome conditions to the Medicaid funds it disburses to the states, or do such conditions amount to coercion and to unauthorized interference with the states’ retained policymaking autonomy? Turning to the Arizona case, may states, as part of their inherent police power to care for their residents’ and communities’ health, safety, welfare, and morals, use their own law-enforcement resources to combat unlawful immigration? Or are such efforts preempted by the Constitution’s clear and sensible allocation of foreign relations, immigration, and naturalization to the national government’s responsibility?
In Arizona, the justices concluded that, given the federal government’s “broad, undoubted power over immigration and alien status,” and given the constitutional rule that state statutes that conflict with or obstruct the operation of federal law must give way, three of the challenged provisions were preempted, but a fourth might not be. The majority reasoned that this fourth provision, which in some situations requires state officers conducting a stop or arrest to verify a person’s immigration status, does not intrude upon an area that Congress has reserved for itself, nor does it undermine or throw a wrench into the federal regulatory framework.
Hosanna-Tabor is, among other things, a “who decides?” case as well. The question presented was whether a former teacher at a church-run grade school could use antidiscrimination laws to challenge her dismissal. The lower court had determined that, because the teacher spent much of her time in “secular” activities, as opposed to overtly “religious” ones, the First Amendment did not prevent a civil court from second-guessing the decision to fire her. The justices unanimously rejected the administration’s strikingly aggressive (and deeply misguided) argument that the religion clauses provide no special protections for religious institutions’ decisions about who should, or should not, be their leaders, teachers, and ministers, and Chief Justice Roberts wrote emphatically that such protections for churches’ freedom follow both from the free-exercise guarantee and the no-establishment rule.
He was right to do so. The separation of powers is a structural feature of our Constitution, and so is the “separation of church and state,” properly understood not as the confining of faith to the private sphere but as distinguishing between political and religious authority in order to respect and safeguard the latter. The question in Hosanna-Tabor was not whether employment discrimination by religious employers is wrong any more than the issue in the health-care cases was how the skyrocketing costs of healthcare can be contained. No, the question is whether the First Amendment’s free-exercise and establishment clauses prevent civil authorities and secular courts from interfering with church governance in ways that violate a religious group’s right to “shape its own faith and mission.” Questions about who is or is not fit or called to lead, teach, and minister in a religious community are not questions the political authorities are given the power to decide.
Our Constitution was designed to protect liberty not only by listing and enforcing rights but also, and more basically, by dividing, enumerating, and reserving government’s powers and authority. Indeed, as some scholars have put it, the “genius of the American Constitution lies [precisely] in its use of structural devices to preserve individual liberty.” The First Amendment is such a device.
This essay is scheduled to go to print just a few weeks before the 2012 presidential election. Usually, as Yogi Berra is supposed to have said, “it is difficult to make predictions, especially about the future.” But, even writing in August, one can say, without fear of later turning out to have been wrong, that the decisions, direction, and composition of the Supreme Court were and will be “issues” in the rough-and-tumble last weeks of the campaign.
If President Obama is reelected, it is very likely that he will be able to select the successors to Ginsburg and Breyer, and perhaps others. This would allow him to shape the Supreme Court and its future as few modern presidents have. Kennedy and Scalia—currently the two longest-sitting justices—are both seventy-six years old. If they leave during a second Obama administration, Obama will be able to transform the Court even more dramatically. On the other hand, if a President Romney were able to fill seats vacated by one or two of the Court’s liberal members, he could entrench for many years a conservative-leaning majority. Whether or not the Court really “follows the election returns,” there is no getting around the fact that justices are nominated and confirmed by elected officials, and so, when it comes to the Court, elections matter.
Not that next year will need a presidential election for drama. This year’s megahit term is already near-certain to be overshadowed by the next. Already, the Court has agreed to take a case involving race-based affirmative action in college admissions, and other cases dealing with the pre-clearance provisions of the Voting Rights Act, California’s Proposition 8, the Defense of Marriage Act, and a proposed personhood amendment to Oklahoma’s constitution are in the pipeline. Don’t expect those who were preemptively outraged by the “activist” striking down of the Affordable Care Act to similarly demand deference by the Court to the lopsided bipartisan votes for DOMA in Congress or respect for the decision of millions of California voters to reject same-sex marriage.
Justice Ginsburg confessed, in June remarks before the American Constitution Society, that “this term has been more than usually taxing.” Just wait.
Richard W. Garnett is professor of law and concurrent professor of political science at the University of Notre Dame.