The most-watched case of the Supreme Court's last term, which ended in June, invited the justices to hold unconstitutional a key provision of the Voting Rights Act. The law required certain jurisdictions--largely in the Old South--to "pre-clear" any changes in their electoral systems with the Department of Justice. It was intended to prevent states with poor civil rights histories from changing their voting systems in ways that would keep blacks from voting. From the questions asked by the justices at the oral argument, the betting among the cognoscenti was that the Court's five-person conservative majority would strike down the law on the notion that things had changed and federal supervision was no longer necessary.
Instead, in a surprise 8-1 opinion authored by Chief Justice John Roberts, the Court decided that it didn't have to address the constitutional question at all. The Court said the district that brought the suit could simply go to federal court and get permission to "bail out" from the pre-clearance provision. No one but the justices thought this argument held water: The bailout provision they cited applied only to counties and parishes, neither of which the district was. The Court's conservatives had ducked the trouble that invalidating the law would have brought them.
Explaining the departure from the plain language of the law, the chief justice acknowledged, "this is an unusual case." But, in a broader sense, perhaps not. At least since its 1954 decision in Brown v. Board of Education, desegregating the nation's schools, the Court has weighed in regularly with dramatic pronouncements on some of the most challenging issues the country faces. As late as 2003, the Court handed down mega-decisions on controversial issues such as gay rights and affirmative action. However, major decisions like those are becoming few and far between. The firecracker-turned-fizzle of the voting rights case is an increasingly typical outcome from a Supreme Court that appears to be receding from its central role in American politics.
As the justices prepare to take their seats for the start of the new term on the first Monday of October, it's worth examining why the big news at the end of the last term was what the Court didn't do. At the start of the term, Court-watchers were decrying the lack of any big cases; by the end, the story was how the justices ducked even in the ones they had. And, despite some October promise, don't expect a blockbuster term this year either. The situation is structural and unlikely to change anytime soon.
Though the big 2003 term was toward the end of William Rehnquist's tenure as chief justice, the Roberts Court has hardly lain dormant since. That all changed this year. As the last term got under way, Adam Liptak, who covers the Court at The New York Times, called the docket a "buffet without entrees." And what's hot on the menu right now? Arbitration cases. The Court had three last term, and it has more to come this term. It's particularly revealing that in two of the three arbitration cases decided last term, liberals and conservatives joined hands on both sides of the decision: That's how you know something isn't a hot-button.
Since its inception, the Roberts Court has looked to avoid trouble. In the 2006 term, the Court's center actually stopped short of overruling past decisions in at least four big cases, despite heckling from Justices Antonin Scalia and Clarence Thomas on the far right. This approach has prompted some to label Roberts a judicial "minimalist." In the voting rights case itself, the chief justice delivered a stern lecture to Congress about how the provisions of the law "raise serious constitutional questions"--but then he walked away from the brink using that most hoary of judicial cop-outs, the "avoidance canon": "[I]t is a well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of a case.”
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COMMENTS (1)
But what is your thesis Prof. Friedman? Is it that the conservative bloc of the Court is philosophically and ideologically predisposed to overturn precedent based on its mere disagreement with the precedent, and to aggressively pursue a rightward agenda, but will do so only in cases in which an aggressive decision will not create a loud public backlash? Is it further your thesis that the Court should tack aggressively in one ideological direction or the other, and that deference to precedent and to legislative judgment will render the Court irrelevant, if not dead?
First, I think it is true that Roberts, Scalia, Alito and Thomas are inclined to disregard stare decisis and legislative judg ... view full comment
But what is your thesis Prof. Friedman? Is it that the conservative bloc of the Court is philosophically and ideologically predisposed to overturn precedent based on its mere disagreement with the precedent, and to aggressively pursue a rightward agenda, but will do so only in cases in which an aggressive decision will not create a loud public backlash? Is it further your thesis that the Court should tack aggressively in one ideological direction or the other, and that deference to precedent and to legislative judgment will render the Court irrelevant, if not dead?
First, I think it is true that Roberts, Scalia, Alito and Thomas are inclined to disregard stare decisis and legislative judgment where such disregard would advance their own political or social ideology. But, where they have refrained from invalidating legislation that they apparently believe is unconstitutional, it is not at all clear to me that they have been deterred by the prospect of a public backlash. It seems more likely to me that the gang of 4 could not garner a 5th vote from the more mature and less ideological Justice Kennedy. Let's take the voting rights case as an example. It is perfectly clear from the opinions of Roberts and Thomas that they are completely willing to substitute their judgment for the judgment of the legislature, not merely concerning legal questions, but concerning the purely factual question of whether Section 5 of the Voting Rights Act is still necessary. Roberts expressly warned Congress that the Court (if the gang of four has anything to say about it) is likely to invalidate Section 5 if it is presented with a case in which it must squarely address the issue. Of course, we don't know, but it is fairly evident that Roberts could not garner a majority to hold Section 5 unconstitutional. Otherwise, he would have had no compunction about doing so. And let's keep in mind that Section 5 does not even implicate any express constitutional provision, in the way that school segregation directly implicated the Equal Protection Clause of the 14th Amendment. In fact, the 15th Amendment expressly GRANTS Congress the power to enforce the right to vote with appropriate legislation. Nowhere does it grant the Court the power to determine what is "appropriate." At minimum, the Court should be highly deferential to Congress' judgment in enacting legislation to enforce the 15th Amendment. But Roberts and Thomas have demonstrated that they are quite prepared to usurp to power the Constitution grants to Congress, if only they can garner a majority to do it.
On the other hand, the gang of four has been happy to make new law and undermine a legislative scheme where it could get Kennedy's vote. The prime example from last term is the New Haven firefighter case. In that case, the Court announced a new rule to determine whether an employer's attempt to comply with Title VII's disparate-impact provision violates Title VII's disparate-treatment provision, and, in clear contravention of Congress' intent, placed employers in the untenable position of being in possible violation of Title VII no matter how they respond to an apparently discriminatory employment practice. So I question the proposition that the gang of 4 has been restrained by fear of public disapprobrium, rather than by the inability to consistently pull Kennedy to their view.
Second, if the gang of four is hesitant to make rulings for fear that Congress may reverse the rulings with legislation, then they are guilty of malfeasance. The Court should have no interest in the outcome of statutory interpretation. Its only interest should be in discerning congressional intent from the statutory language and from other sources if necessary. It should be of no consequence to the Court if it interprets a statute one way, and Congress then amends the statute to reflect its true intent. With regard to the Ledbetter case, you imply that it is the gang of 4's agenda to restrict the application of the equal-pay provisions of federal law, and that it would be (or was) chagrined by the legislation to amend the equal-pay provisions to implement Congress' intent that the equal-pay provisions not be so constricted. It would be wholly improper for the Court to be motivated by such considerations.
Finally, if the gang of 4 is in fact being deterred, for whatever reason, from showing a lack of deference to precedent and to legislative judgment, then that is a good thing. Your position appears to be that, in order for the Court to be relevant, it must exceed its proper role under the Constitution.