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