Not so long ago, the answer seemed straightforward. In reviewing the Court’s record back in 2010, shortly after the Citizens United decision that upended the nation’s campaign-finance laws, Adam Liptak, the Times’ SCOTUS man, reported that it had “not only moved to the right but also became the most conservative one in living memory,” and cited some academic research to support his case. In more than sixty per cent of cases, the data showed, the Roberts Court had issued conservative rulings.
Fast-forward three years, and things look a bit different—or do they? In June, 2012, in perhaps the most momentous ruling of Roberts’ eight-year tenure as Chief Justice, the Court infuriated many Republicans by ruling that Obamacare was constitutional. And now it has outraged social conservatives by striking down the 1996 Defense of Marriage Act and letting a lower court strike down California’s Proposition 8. While the majority opinions in both of these cases were narrow ones—the Court carefully avoided suggesting that same-sex partners have a constitutional right to get married, and it dismissed the Prop. 8 case for procedural reasons—few doubt that these decisions will have the impact of helping to make gay marriage legal in many places where it currently isn’t.
So what of the theory that Roberts is leading the Supremes in a conservative direction? Clearly, it needs modifying. If you read some of Justice Scalia’s blistering dissent in the DOMA case, or his equally scathing dissent in the Obamacare case, you can sense some of the frustration of the radical right. Roberts is no bomb-thrower, and neither is Justice Anthony Kennedy, who wrote the majority ruling in the DOMA case.
But that doesn’t mean they aren’t conservatives—they are. Even when they are giving up ground, as in the DOMA case, they try to justify it on conservative grounds, such as enhancing the rights of the states to set social policy.
If you look at the over-all record of the Roberts Court, especially in areas relating to business and commerce, it remains staunchly conservative. Union busters and big corporations operating in cartelized industries have little to fear from the Chief Justice and his conservative colleagues, who remain largely in thrall to the Chicago School of economics and its allied law-and-economics movement. In politically charged cases, too, the Court usually tilts to the right. As evidenced by their votes for tightening the rules for affirmative action and striking down parts of the Voting Rights Act, Roberts and Kennedy are basically on board with the long-term project of rolling back the Great Society and its offshoots. They are just more careful, strategic, and willing to face contemporary reality than “movement” conservatives, such as Scalia and Thomas.
In this, they have quite a bit to teach the G.O.P., to which they both owe their seats on the bench.
The Roberts Court, unlike the G.O.P., has recognized that changing social attitudes and family structures have rendered obsolete old, absolutist notions that marriage and family life—those based on religion or a particular view of sexuality. The Roberts Court, unlike the G.O.P., has recognized that elections matter, and that deliberate efforts to undo their results, such as the attempt by the Hughes Court of the nineteen-thirties to block key elements of the New Deal, and the effort by today’s Republican Party’s to block Obamacare, can do great damage to institutions whose legitimacy depends on popular support. And the Roberts Court, unlike the G.O.P., has recognized that the most effective way to undo iconic liberal rulings and iconic liberal pieces of legislation, such as Roe v Wade and the Voting Rights Act, is not to challenge them head on—down that road lies the danger of a big backlash—but, rather, by chipping away at them.
The Court’s rulings on affirmative action and voting procedures were models of crafty conservatism. In declining to rule in favor of Abigail Fisher, a white woman who challenged the University of Texas’s right to use race as one of its guiding factors in deciding which students to admit, the Court didn’t throw out affirmative action in college admissions, and for that many liberals were grateful. But in ruling that the U.S. Court of Appeals for the Fifth Circuit had failed to apply “strict scrutiny” in reviewing the University of Texas’s admissions process, and in sending the case back for further review, the Justices made it a good deal harder for other colleges to justify similar policies. (Eric Lewis has more on that.) In the coming years, we will almost certainly see a series of rulings against affirmative action in the lower courts. The conservatives will eventually get what they want, and they’ll get it without embroiling the Roberts Court in a racially charged controversy.
The Court’s attack on the Voting Rights Act, though also somewhat indirect, was potentially even more far-reaching. Rather than ruling that racial discrimination was a thing of the past and that there was no need for the federal government to oversee voting at the local level, the Court left in place the general principle that there is a need for outside supervision. But it gutted the Act’s enforcement mechanism, opening the door for states like Texas to introduce voter-identification acts that suppress minority turnout and redistricting maps that favor Republicans. And, once again, the Court attempted to shift responsibility, inviting Congress to rewrite the V.R.A.’s enforcement mechanism to reflect “current conditions”—something that is unlikely to happen, given the G.O.P.’s control of the House.
Act strategically, avoid looking like radical ideologues, don’t pick fights you can’t win, and when you have to give ground, do your best to describe it as a victory of conservative values. These are the rules of the Roberts Court. In principle, they could serve well any right-leaning institution looking to prosper in a society that is growing steadily more liberal on social issues but which still has some distinctly conservative instincts, especially on matters having to do with law and order, government efforts to help individual groups, and national security. The Roberts Court has provided the template. But is the G.O.P. willing to adopt it?\
Original Article
Source: newyorker.com
Author: John Cassidy
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