Some Brief Thoughts About How Much Conservatives Lost in the Recently Concluded Supreme Court Term

Posted in: Constitutional Law

One thoughtful explanation of the success enjoyed by the bloc of “liberal” Justices (often combined with Justice Kennedy) this past Term is, as NPR’s Nina Totenberg wrote, “that conservative activists just pushed their agenda too far.” As Yale law professor (and my older brother) Akhil Amar put the point: “Several of the most important [liberal] victories that you see are simply the Court blinking at the extremism of certain [conservative] claims that were being put before it.”

Some people may be tempted to recast this account as meaning that the conservatives did not really “lose” much in the big cases, since the status quo was against them, such that their (unsuccessfully) attempts to disrupt that existing state of affairs didn’t leave them any worse off than they were before. But it would be a mistake to view things that way. To be sure, Obamacare subsidies in federal-exchange states were taking place before the Court affirmed their validity in King v. Burwell. Federal redistricting lines drawn by an independent commission were being employed in Arizona for over a decade prior to the Court’s blessing their use in the Arizona State Legislature v. Arizona Independent Redistricting Commission opinion I wrote about in my last column. And same-sex couples were getting married in (most of) the country before the Court upheld their constitutional right to do so in the landmark Obergefell v. Hodges ruling.

But to see these three rulings merely as aggressive if ultimately unsuccessful attempts by conservatives to undo the status quo is to miss the ways in which these decisions (and others) have left conservative jurists and advocates with bigger problems than they had before these cases were heard. That is because a decision by the Court (or, rather, four or more of its Justices) to take up a case results not simply in an outcome that may or may not change things, but also in an opinion that can change things down the road even when the narrow outcome of the case simply preserves the status quo.

How the Majority Grounded its Decision in Obamacare

Take King v. Burwell. Many were perplexed by the Court’s grant of certiorari. Had the Court not taken review there was every reason to believe there would be no abiding split in the circuits. So the Court didn’t need to hear the case to ensure uniformity. For this reason, many observers thought this was a case where four (conservative) Justices agreed to review with an eye toward reading the Obamacare statute differently from how the administration had. And they failed in that bid. But so what? If you don’t play, you can’t win. And from the conservative point of view, a 6-3 ruling rejecting the plaintiffs’ reading of the statute leaves the implementation of the statute pretty much where it was prior to the lawsuit’s having been filed.

But what this summary ignores is that the majority opinion by Chief Justice Roberts didn’t just reject the dissenters’ reading of the Obamacare statute. Nor did the majority lean on “rules of construction” (such as deference to administrative agency interpretation or deference to reliance by states) that are sometimes used to break ties as between different readings of a statute. No, the majority rejected the dissenters’ essential approach to reading big statutes altogether—holding (reasonably enough to my mind) that many statutes are going to have their textual quirks, and judges shouldn’t be looking to play “gotcha,” but instead should acknowledge that all readings will often tend to make some provisions of the statute seem textually shoddy, so one should choose the reading that best fits with the overall purposes of the statute, as reflected in its overarching textual architecture.

Long after the meaning of Obamacare is put to rest, this approach to giving meaning to congressional statutes could have implications (which may tend to lean in the liberal direction) in many other settings.

The Broad Nature of the Arizona Redistricting Commission Ruling

Let us next consider the Arizona case. As I wrote two weeks ago, the Court could easily have rested its result on a directly applicable federal statute, and avoided making a big constitutional ruling endorsing the use of direct democracy in federal election regulation. Indeed, had the conservative Justices read the federal statute fairly (and thus been willing to concur in the judgment), they could have made the majority look very bad for reaching out and deciding the larger constitutional questions for no good reason. (Had they done this, there is a good chance the majority would have had to back down, and the Court would have come out 9-0, relying only on the statute.)

Instead, the four dissenters rejected the statute’s application (based on reasoning that seems to me quite thin), opening the door to the majority to decide the case “big.” As I explained two weeks ago (and as Rick Hasen has also nicely argued), the majority forcefully rejects a narrow reading of the word “legislature” in the Elections Clause of Article I, in a way that has direct implications for the same word in other parts of the Constitution, such as Article II, which frames state involvement in the electoral college.

Obergefell and Embrace of Substantive Due Process

At first blush, the same-sex marriage ruling in Obergfell might not seem to have made things worse than they were before for the conservatives. True, same-sex marriage wasn’t being allowed in all the states the way it is now. But more and more states (whether voluntarily or on account of lower court pressure) had been going that way. And same-sex couples who got married in states that allowed it were moving to all the states that didn’t. Moreover, Justice Kennedy’s focus on liberty (which is somewhat doctrinally vague and to many observers less-than-rigorous) rather than equality provides ample opportunity for conservatives (and many liberals for that matter) to criticize the opinion and its overall coherence. Relatedly, a focus on liberty leaves people who want religious accommodations from laws that would otherwise require their participation in same-sex marriage proceedings on reasonably firm ground. If the autonomy and dignity of same-sex couples matters, why should not the liberty and deeply held beliefs of religious adherents?

Moreover, it seems that when individuals have a constitutional right based on equality, guaranteeing that equality can often be found to be a compelling government interest that overrides the claims of those seeking exemptions or accommodations. And, of course, a liberty rationale in Obergefell leaves open—in a way that an equality-based rationale would not—questions about whether discrimination against gays and lesbians in things like public employment, housing, jury service, etc. are permissible.

But this conservative-silver-lining perspective is incomplete. A liberty-based majority opinion grounded in so-called “substantive due process” principles might do long-lasting damage to those who would trim back, or at least hold the line on, substantive due process as a constitutionally valid mode of decision. Some detractors have tried with many earlier modern substantive due process milestones—Griswold v. Connecticut, Roe v. Wade, Lawrence v. Texas—to limit them, or explain them in context-specific terms. But Obergefell is another big block in the substantive due process edifice. And when a building reaches a certain size, it becomes a lot harder to convince folks that it should be razed or that seemingly sensible add-ons should not be permitted.

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