Friday, June 26, 2015


Mark Graber

Somewhere in a progressive coffee shop, a progressive guitarist is singing:

All our troubles seemed not far away
Now Obamacare is here to stay
Oh, I believe in yesterday.

[Personal note, how many people who know me actually believe I knew that song, even if the paraphrase is not quite right]

Rumors of the court swinging left nevertheless seem wildly exaggerated.  What the Supreme Court did yesterday was maintain the status quo.  The justices interpreted the Fair Housing Act as consistent with how similar civil rights laws have been interpreted for thirty years and interpreted the Affordable Care Act as that measure was understood by all three branches of the national government at its birth.  Those of us who have questioned whether litigation is a particularly promising venue for social change have never questioned that progressives can be successful in court when defending the constitutionality of progressive measures or implementing progressive measures.  Putting aside the same-sex marriage cases (more on that when they are handed down), the court is not moving left.  All the justices have done in a few more cases then usual is limited the inroads conservatives are making on the status quo.

The most notably feature of yesterday’s opinions from this perspective may be the absence of any liberal concurring opinion.  In the spirit of Justice Brennan, who devoted his life to winning cases rather than achieving doctrinal coherence, the four more liberal justices on the court seemed to have reached a Faustian bargain whereas they will let Justice Kennedy or Chief Justice Roberts speak for the Court without comment or critique as long as they vote against conservative attempts to push the constitutional status quo to the right.  The result is that the Affordable Care Act remains functional, but we lack an opinion that might provide the foundations for interpreting that measure as part of the federal government’s constitutional obligation to ensure all persons have the basic health care needed to function as citizens in a contemporary democracy (and note the praise the Chief Justice heaped on the unsuccessful litigants in that case.  When was the last time lawyers for the defendant in a death case were extended that courtesy).   Disparate impact claims can be still be made under the Affordable Care Act, but we lack an opinion that might begin the process of undermining the line of Supreme Court decisions that make disparate impact practically impossible to prove.

The tendency to see all opinions and decisions as either liberal or conservative misses the central trend of American constitutional politics since at least 1980.  The primary goal of conservatives over the past thirty years has been to push both constitutional doctrine and public policy to the right.  The primary goal of most “progressives” and “liberals” over the same period of time is to prevent previous liberal and progressive gains from being overruled or rolled back.  In short, the fight is between the status quo and the right, not between the left and the right.  Perhaps the political movement to draft Elizabeth Warren that is now moving to Bernie Sanders will change this dynamic.  But yesterday was a part of that dynamic, and not a repudiation of the constitutional politics of the most recent generation.

P.S.  May I propose the following amendment to Mark Tushnet's accurate commentary on Justice Scalia.  Scalia often speaks of himself as the last defender of the traditional judicial role.  But no John Marshall opinion or opinion of any other great legal giant of the pre-New Deal era is written in a style primarily designed to appeal to the Rush Limbaughs of that period.  I suspect John Marshall and others would agree that the dignified style of a judicial opinion was as central to the original conception of the judicial role as the substantive contents.  If time requires a change in the way justices express themselves, then a fair case can be made the reason is that time requires a change in the judcical role as a whole.

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