The Supreme Court Term that just concluded was historic by any standard. In just the last week, the Court invalidated a federal statute defining marriage to exclude same-sex couples, threw out part of the Voting Rights Act as antiquated, and reaffirmed that public colleges and universities may expressly take account of race in pursuing racial diversity but insisted that they may only do so if race-neutral means fail.
The Term also included some counter-ideological surprises, like Justice Antonin Scalia joining the Court’s three most liberal members in writing an impassioned dissent from the majority opinion that permitted collection of DNA samples from felony arrestees. Perhaps the biggest surprise was the cross-ideological lineup in the Proposition 8 case, Hollingsworth v. Perry. The majority for rejecting the appellate standing of the ballot initiative sponsors—and thus for reinstating the district court opinion that (re)legalized same-sex marriage in California—consisted of Chief Justice Roberts and Justices Scalia, Ginsburg, Breyer, and Kagan; Justice Kennedy’s dissent was joined by Justices Thomas, Alito, and Sotomayor. Predicting that configuration of strange bedfellows would have been nearly as difficult as picking a perfect NCAA basketball bracket.
Nonetheless, as much fun as it is for us constitutional law professors to predict, read, and then criticize the Supreme Court’s blockbuster rulings each June, the annual Term is probably the wrong unit of analysis for thinking about the Court. After all, only a year ago, pundits were remarking that by casting the decisive vote to uphold the Affordable Care Act, Chief Justice Roberts had indelibly asserted his leadership over the Court. Yet this past Term, Justice Kennedy showed the power of the median Justice. He was in the majority in all but three of the twenty-three 5-4 rulings of the Court, whereas the Chief Justice was in dissent in three times as many 5-4 cases. Rumors of the demise of the “Kennedy Court” were apparently premature.
More broadly, to understand where the Court is at any moment, one must sometimes look across Terms. In the balance of this column, I do just that, and identify a troubling development that cuts across doctrinal areas: a recent tendency of the Justices to presume that novel forms of legislation are unconstitutional in light of their novelty.
Last Term’s Affordable Care Act Case
As most readers no doubt recall, one year ago the Supreme Court upheld the Affordable Care Act on the ground that the provision of the Act requiring persons not otherwise covered by health insurance to purchase such insurance—sometimes called the “individual mandate”—was a permissible exercise of Congress’s power to lay and collect taxes. Yet five Justices (the dissenters plus Chief Justice Roberts) also said that the mandate could not be sustained as an exercise of Congress’s power to regulate interstate commerce—even though it was a central component of a law regulating the multibillion dollar interstate market for health care.
Why did a majority of the Court think that Congress could not enact the mandate? Although Chief Justice Roberts admitted that “there is a first time for everything,” he nonetheless treated the mandate’s supposed novelty as a “telling indication of [a] severe constitutional problem.” And the four dissenting Justices who shared the Chief Justice’s Commerce Clause conclusion repeatedly referred to the mandate as “unprecedented.”
The idea that the mandate was unprecedented is itself highly contestable. As Justice Ginsburg noted in dissent, federal statutes have included a mandate to serve on juries, to file tax returns, to register for the draft, and to furnish weapons for militia service—with that last mandate having been enacted in 1792. But let us put aside the question of whether the mandate was really unprecedented. Even if it was, so what?
The point is not simply that, as even the Chief Justice admitted, there is a first time for everything; the point is that everything is unprecedented if described at a sufficiently specific level of generality. Prior to the 1950s, Congress had never enacted legislation regarding air pollution, and it did not enact comprehensive air pollution legislation until 1970. Yet that is no reason to regard federal efforts in this area with skepticism. Congress enacts unprecedented measures whenever it decides to tackle problems that earlier generations would not even have recognized as problems.
More Hostility to Novelty in the Voting Rights Act Case
The same five conservative Justices who thought that the Affordable Care Act went beyond the limits of Congress’s powers under the Commerce Clause ruled last week in Shelby County v. Holder that the coverage formula of the Voting Rights Act was unconstitutional because it was outdated. En route to that ruling, the Court explained that it would subject the coverage formula to careful examination because the requirement that particular covered jurisdictions receive pre-clearance from the federal government of any changes in their voting procedures was “extraordinary,” by which they meant something like “unprecedented” or “novel.”
Of course, even if the Voting Rights Act’s pre-clearance requirement was novel when enacted in the 1960s, it is hardly novel today—and so what we must understand the Shelby County majority to mean is something more like “highly unusual.” Even that characterization is contestable, as I noted on my blog last week, but let us suppose that the pre-clearance requirement is highly unusual. We still face the same question raised by the conservative majority’s similar move in the Affordable Care Act case: so what? Why should the fact that Congress chose unusual means to effectuate one of its enumerated powers give rise to a suspicion that it acted outside of those powers?
Liberals Do It Too
This past Term demonstrated that it is not only the conservative Justices who succumb to the temptation to equate novelty with unconstitutionality. In United States v. Windsor, Justice Kennedy wrote for himself and the liberal wing of the Court that by adopting a uniform federal definition of marriage in Section 3 of the Defense of Marriage Act (DOMA), Congress had departed from the “history and tradition of reliance on state law to define marriage.” Quoting his 1996 opinion for (himself and what was then the liberal wing of) the Court in Romer v. Evans, Justice Kennedy continued that the “unusual character” of the discrimination wrought by DOMA warranted “careful consideration” by the Court.
Once again, however, one must ask why. If DOMA—or Colorado’s state constitutional amendment stripping gays and lesbians of anti-discrimination protection, which was at issue in Romer—treats people unequally, then the Court should strike it down for that reason. But the novelty of the means chosen do not directly bear on constitutionality.
Let me be clear. I thought the Court correctly decided both Romer and Windsor, and that Justice Kennedy’s elegiac opinions in those cases generally bring credit to him and to the Court. Likewise, one might think (although I happen not to think) that the majority in the Affordable Care Act case and the majority in last week’s Voting Rights Act case correctly determined that those laws exceeded the bounds of Congress’s authority under the Commerce Clause and the Fifteenth Amendment, respectively. But also likewise, the novelty of the respective laws should not play a substantial role in underwriting that conclusion.
Judicial review by the Supreme Court inevitably has a small-c conservative bias, because Justices who serve for life reflect the sensibilities of the older generation and the priorities of the (mostly) past Presidents who appointed them. That feature of American government can be justified, if at all, on the ground that the Court provides a stabilizing, moderating influence—what political scientists sometimes call another “veto gate” that legislation must pass in order to be fully effective. But it takes stability too far for the Court to compound its institutional bias towards the past to introduce skepticism of novelty as an express consideration in its application of the Constitution. The trend towards suspicion of legislative novelty should be halted.
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