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Supreme Court Decisions to Shape Policy, Campaigns
Posted at 9 a.m. on May 18
As the justices bring this season’s caseload to a close, they have a pretty clear idea how the rest of this Supreme Court year will play out. The rest of the country, however, will remain almost entirely in the dark until the remaining decisions are unveiled over the next six weeks.
The outcome in at least four of the most important disputes will help shape both the policymaking and campaign agendas of Congress through the midterm elections and beyond. But it’s possible no single ruling will have as much impact on the national political climate as the pattern that emerges in how the cases get decided.
The members of the current court are getting a reputation for being just as partisan and polarized as the politicians populating the other two elected branches of government. New polling shows the public is none too pleased with the Supreme Court’s perception, which is backed up by some pretty solid evidence, and people want term limits for the justices in an effort to depoliticize the court.
So far this spring, two landmark cases at the intersection of legislating and politics have been decided by the narrowest possible 5-4 split, with all the nominees of Republican presidents lining to defeat the justices chosen by Democrats. That was the case in the April’s ruling against the longstanding cap on how much an individual may donate to federal candidates in a given election cycle, and in May’s ruling in favor of sectarian prayers before meetings of town councils and county boards nationwide.
And it was the same split in a third such case last summer, which struck at the heart of the Voting Rights Act. The Republican-picked majority (in descending seniority) was Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. The Democratic-chosen minority was Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
Given the hot-button issues at stake, and the tenor of the questioning at the oral arguments, there is reason to suspect that several of the biggest decisions before the end of June will divide along those same partisan lines.
Only the five members of the GOP-appointee bloc sounded altogether ready to permit family-owned corporations to cite their religious freedoms in declining to provide insurance coverage for contraception, as generally required under the new employer mandate of the Affordable Care Act. (Hobby Lobby, the main plaintiff in this term’s most important challenge to Obamacare, objects by holding up a belief that some contraception methods amount to abortions.)
The same five justices also made plain they are skeptical of the Obama administration’s view that it has broad latitude under the law to set emissions limits on greenhouse gases from power plants, even though the numbers are nowhere mentioned in the Clean Air Act. The four Democratic appointees, in contrast, appear aligned behind the view that the EPA should have broad leeway in combating climate change.
How the court comes down on the Hobby Lobby and EPA cases will influence how the political parties shape two of their most important messages — on health care and environmental regulation — before the midterm elections.
Justices all along the ideological spectrum raised a collective eyebrow at President Barack Obama’s expansive view of his recess appointment power, which he says permitted him to fill positions when senators were scattered across the country but still holding regular pro forma sessions. While the conservative quintet seems tempted to decree that confirmations are constitutionally required for all nominees except in the brief period between sessions of Congress, the liberal quartet seemed much less inclined to confound decades of precedent, in which presidents bypassed the Senate when it was shuttered for defined midyear periods.
The Republican-Democrat divide looks least likely to reappear in the case testing the constitutionality of laws against lying in politics, which are on the books in about 15 states. A bipartisan majority appears ready to allow the anti-abortion group Susan B. Anthony List to pursue its claim that Ohio’s law is having a chilling effect on its political efforts.
If the court goes beyond that narrow question of legal standing to sue, it’s reasonable to predict a 6-3 decision that the law violates the First Amendment. That was the court’s split two years ago in declaring that a federal law making it a crime to lie about receiving military decorations violated the First Amendment. Only conservatives Scalia, Thomas and Alito signed a dissent declaring that “the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest.”
Just as for the past several years the voting records of the most conservative Democrats in the House and Senate have been measured as to the left of the most liberal Republicans, so it is now with the high court. A study by Lawrence Baum of Ohio State University found that, for 57 straight years starting in 1953, at least one Republican appointee to the high court was more judicially liberal than the most conservative Democratic-appointed justice. That has not been the case in any of the three terms completed since the court attained its current composition in 2010.
Beyond that, the sharp and often bitter tone of Supreme opinions — even when wrapped in so much circuitous legalese — have started to sound like an echo of the polarized rhetoric that dominates life at the Capitol across the street.
Which helps explain why the job approval for the court, as measured by Gallup, has slid steadily from 62 percent in 2000 to 46 percent last year. Or why solid majorities in several other polls in this decade say that personal “political views” at least sometimes shape the justices’ decision-making.
Or why more than 7 in 10 adults, from both parties, professed support for ending lifetime tenure for the justices and setting a fixed term limit when queried last month by the Democratic polling firm Democracy Corps.
All outward signs point to the court’s membership staying the same through the end of the Obama presidency. And a hardening of the partisan voting pattern would boost the chances for the Supreme Court becoming a defining issue in 2016.