In every constitutional case the Supreme Court decided this term, the Justices had discretion to decide the case in favor of either party and pursuant to a broad or narrow legal rationale. The Justices would have you believe their choices were limited by prior law but that is simply false. On issues of race, religion, politics and technology, the Court made decisions that will seriously affect how Americans define themselves as a country, and which reflect the Justices’ overall value systems much more than their legal perspectives.
In May, the conservative and liberal Justices disagreed over the Christian prayers used by the Greece, New York Town Council to start their legislative sessions. The Justices could have outlawed those prayers pursuant to three prior cases that disallowed such prayers in public school classrooms, high school graduation ceremonies, and football games. Or they could have allowed the prayers under a case that permitted non-denominational prayers in state legislatures, which are different than town councils because local folks don’t go to state legislatures to seek zoning variances and conduct other personal business.
The conservatives chose an extremely narrow interpretation of the First Amendment’s Establishment Clause and told the atheist and Jewish plaintiffs, who were asked by Greece’s official “Chaplin of the Month” to bow their heads to Jesus, to, well, just get over it. Justice Kagan strongly disagreed, arguing that Greece had in fact “established” Christianity as the official religion of its town council.
The Court’s decision not only allows prayers of one religion (almost always Christian), at local, state, and federal governmental meetings, but strongly suggests that the tolerance the Constitution requires be placed squarely on the shoulders of those offended by the prayers rather than on those seeking to pray at government meetings.
Given that the Greece began its meetings until 1999 with moments of silence (where anyone who wanted to pray could do so), an alternative the Court had previously and controversially imposed on the public schools of our nation, no one should miss that the Justices favored religious over secular values and that the choice had little to do with constitutional text, history, or precedent. Maybe it is a coincidence that the four dissenters included three Jews and a non-practicing Catholic, but I doubt it.
Back in April, the Court by a vote of seven to two decided a race case that could have dramatically changed the country had the Justices in the majority agreed with Justice Sotomayor’s stirring and emotional dissent. The legal issue was whether a constitutional amendment passed by the people of Michigan outlawing affirmative action at all public schools within the state violated the federal constitution.
The lower court had invalidated the amendment on the basis of prior Supreme Court cases, striking down measures making it harder for minorities to achieve favorable legislation. This time, however, the Court upheld the law, saying in effect that since affirmative action is barely constitutional anyway, the people can choose at the state level to forbid its use whether or not public schools within the state think it is a good idea.
That was a reasonable interpretation of the pre-existing legal authorities but the Court could just as easily held, as Sotomayor and Ginsburg argued in dissent, that “our precedents do not permit political restructurings that create one process for racial minorities and a separate, less burdensome process for everyone else.”
The dissent also passionately argued that, given our history of slavery, segregation, and overt racial discrimination, the Supreme Court should be sensitive to state efforts to achieve similar goals through new legislation changing the rules of the political game. The other Justices, while not denying that history, felt that we have moved far enough away from our racist past to allow the states considerable leeway in how their political processes deal with issues of race. This divide was also present in the landmark Voting Rights case decided last year.
How to deal with our sorry history of racial discrimination is one of our most difficult and pressing public policy questions and the text of the Fourteenth Amendment requiring the “equal protection of the laws” does not really help beyond prohibiting formal discrimination. Had a majority of the Court adopted Justice Sotomayor’s perspective on the problem, the Court would have sent a strong message that much more work needs to be done. Instead, the Court suggested that we have largely moved beyond racial discrimination. The rest of us, like the Justices themselves, will inevitably disagree over the right answer or what the word “equal” means, but that perspective has little to do with constitutional text or history and everything to do with personal values and experiences. And, so it was for the Justices.
This term also saw a five-to-four decision striking down a campaign finance law aimed at reducing the corrosive effect of money on our political system. In McCutcheon v. FEC, the majority and dissenting Justices disagreed over whether the federal government could limit the aggregate amount of money any one person could contribute to political campaigns in any given year.
Whether a person in Alabama writing a check to a candidate in California is core political speech requiring special judicial protection or instead political behavior that can be regulated to fight corruption cannot be answered by the simple command “Congress shall make no law abridging the freedom of speech.”
Furthermore, a previous case upholding a similar restriction was brushed aside by the conservative Justices on the twin grounds that the prior case only tangentially raised the issue and, in any event, times had changed since the 1970’s when that case was decided.
The five conservative Justices are highly skeptical of any attempts by lawmakers (usually incumbents) to limit political spending while the liberals appear to think such legislation is not only constitutional but also desirable. Right now, the conservatives have the power, and their veto over campaign finance regulations has enormous impact not just on our electoral process but also on who is given access to our politicians once they hold office.
Last Thursday the Court handed down a unanimous decision holding that police may not search (absent emergency) the cell phones of people who are arrested unless the police first obtain a warrant. The Justices, all of whom likely have cell phones, were familiar enough with this technology to understand that searching a phone is often the equivalent of searching a computer.
The decision was universally hailed -- and properly so The Justices’ choice here was a welcome signal that, at least at times, new technology requires new rules but it is also true, as the Aereo case decided the same day demonstrated, that new technology sometimes breeds a stubborn grip on the past. The difference is one of familiarity and choice not law or logic.
Finally, we have Hobby Lobby, which pitted the Obama Administration’s desire to prevent un-intended pregnancies and protect women’s health against the religious values of owners of privately-held, for-profit corporations, who do not want the company’s health insurance plans to cover four contraceptive devices those folks believe are the moral equivalent of abortions.
The case arose under a federal law (RFRA), not the Constitution, but the Justices had discretion to interpret that law broadly or narrowly and apply it to for-profit companies. Before the Hobby Lobby case, no for-profit company had ever before been given free exercise of religion rights under either the Constitution or a federal statute.
In a five to four decision the conservatives held that privately-held companies do not have to comply with the contraception mandate because, even though the government has a compelling interest in women’s health, the mandate (yes another mandate) had to fail because there were “less restrictive means” of furthering that interest. The conservatives noted that the government regulations already exempted not-for-profit corporations from the mandate and thus could easily do the same for Hobby Lobby.
Legal mumbo-jumbo aside, the basic point was that the five conservatives on the Court in all likelihood sympathized and identified with the religious owners of Hobby Lobby while the four liberal dissenters did not agree that religious choices should trump the government’s desire to make all contraceptives easily available for women seeking to avoid unintended pregnancies. Once again, values not law divided the Justices, and once again the dissenters were three Jews and a non-practicing Catholic.
The Roberts Court is intent on protecting political spending on campaigns and religious choices and not all that concerned with the rights of women and people of color. Next year will likely bring same-sex marriage and gun rights back to the Court. How will the Justices’ view those issues? To find out read their resumes not the Constitution or laws of the United States.