« The judicial power of the United States, shall be vested in one Supreme Court […] The judges, shall hold their offices during good behaviour». Article III of the constitution stipulates that the judges of the Supreme Court should respect the neutrality of the Judicial Branch in order to counterbalance the two other branches of government. But one can easily contest the theory and affirm that in practice, judicial power is deeply politicized. The mere fact that the president (incarnation of the highest sphere of politics) appoints the judges means that they have to be known by him, and therefore that he has to support them. So they have to rub shoulders in the political branch, siding with the Republicans or the Democrats, and hope to be one day appointed Justices of the Supreme Court. “The Extreme Partisanship of John Roberts’s Supreme Court » by Garrett Epps of The Atlantic, “The Roberts Court’s Brief Progressive Moment » by Jeffrey Toobin of the New Yorker or the piece by Adam Liptak in the New York Times “Court Under Roberts Is Most Conservative in Decades” are proof that partisanship in the court is very much a hot topic for contemporary political observers. This article will examine the political forces in today’s Supreme Court and why it matters to do so.
A conservative Supreme Court
Reports and articles show that today, the Supreme Court is the most partisan as it has been in a while. Yet one could say that the court is rather balanced in terms of political forces. Four justices were appointed by a Democratic President: Clinton appointed Justice Ruth Bader Ginsburg and Justice Stephen Breyer, Obama Justice Sonia Sotomayor and Justice Elena Kagan. Five justices were appointed by Republicans: Justice Antonin Scalia and Anthony Kennedy were appointed by Reagan, Justice Clarence Thomas by George H. W. Bush and finally Justice Samuel Alito and Chief Justice John Roberts were appointed by George W. Bush. But what weighed in the balance is that two justices have a reputation for compromise. The two justices in question are Chief Justice Roberts and Justice Kennedy. In most cases, when it is a tie (a 4 against 4 decision), Kennedy or Roberts are the two justices who decide which camp wins siding either with the more conservative or more liberal justices seating on the court. They are called “swing justices”. But the fact that the justices go one way or another depending on the case they are trying doesn’t mean they refuse partisanship. A quick look at the press makes it clear that political beliefs play a central part in the Court decisions.
Actually this institution, which should be apolitical, trying to rule according to basic principles of the Constitution without taking into account the partisan sensibilities, is not as neutral as the Supreme Law of the land created it. In fact, not only do most of articles today point out that partisanship is an entrenched feature of today’s Supreme Court, but the press also stresses that the John Roberts court is the most conservative ever. Why so? Because in most of the cases which require either a conservative or a liberal decision, the Court moved in favour of the first. In 2010 more than 58% of the decisions were considered as being conservative, and the court overruled eight precedents in its first five years. Seven of them served conservative ends.
Four of the six most conservative justices since 1937 are serving now
The two swing justices of the Court previously mentioned are part of the top 10 conservative justices since 1937. According to Adam Liptak there are even “Four of the six most conservative justices […] since 1937 that are serving now”: Roberts, Scalia, Alito and Thomas. You can actually read most of the decisions that prove the court shifted rightward. You can see it in the ruling on gay rights (Hollingsworth v. Perry in 2009) when they refused to recognize the constitutionality of same-sex marriage. The argument was to say that the question of same-sex marriage was a State prerogative, closer to the conservative ideology. On the review of the voting rights Act (Shelby county v. Holder in 2013) for which they drastically reduced the access to the ballot for the African American community. In fact they declared section 5 and 4b of the Voting Rights Act unconstitutional, forcing some states to submit new voting laws to the federal state acceptation, making it easier for the states to higher the prerequisites to vote and finally to prevent African Americans to vote.
So not only is the court a highly partisan place, but it really takes positions on the conservative side, pushed by Chief Justice Roberts but also by Justice Samuel Alito, a centre-right Justice, who took the place of Sandra Day O’Connor, who formerly supported a centre-left ruling. Obviously, arguing that the John Roberts Court is very conservative cannot eclipse the fact that some liberal decisions have been handed down. It might actually be more accurate to contrast this mainstream vision of the court with the new “hybrid” version of it given by the Roberts and his fellow Justices.
A full conservative court? Not really…
One cannot deny that the Roberts Court is a conservative-leaning institution. Campaign finance, religion (Arizona Christian School Tuition Organization v. Winn) or abortion (Gonzales v. Carhart) are cases in point. Indeed, in Citizens United v. Federal Election Commission, the court agreed corporations and unions could make unlimited independent contributions in campaigns, saying restrictions violated free speech, which is protected by the First Amendment to the US Constitution.
Nonetheless, the kind of conservatism which prevails or just how conservative the Supreme Court is remains unclear. Not all of the rulings were conservative. Some were closer to the libertarian or even progressive trends. For instance, Roberts ruled in favor of extending the right to personal privacy to smartphones in Riley v. California. While delivering the opinion of the Court, Chief Justice Roberts argued that « digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon–say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one. »
As a result, Roberts tends to differentiate himself from other conservatives who often interpret the Constitution in line with the originalist interpretation. Roberts is more willing to change and is very good at protecting the Constitution even when this means voting with the more liberal members of the Court. Federal judge Diane Sykes explained that Robert’s jurisprudence « appears to be strongly rooted in the discipline of traditional legal method, evincing a fidelity to text, structure, history, and the constitutional hierarchy. He exhibits the restraint that flows from the careful application of established decisional rules and the practice of reasoning from the case law. He appears to place great stock in the process-oriented tools and doctrinal rules that guard against the aggregation of judicial power and keep judicial discretion in check: jurisdictional limits, structural federalism, textualism, and the procedural rules that govern the scope of judicial review”.
In other words, ranking Chief Justice Roberts among hard-line conservatives would be an extreme statement. Roberts is much less easy to grasp than the Manichean conservative v. liberal opposition would seem to do.
John Roberts’ Supreme Court and the upholding of The Affordable Care Act (Obamacare): between progressivism and conservatism
Chief Justice Roberts was decisive in upholding most of Obamacare as the justices were split 4 to 4. While the federal government has limited powers that are delineated in the Constitution, the remaining powers are retained by the states. Therefore, the main issue of the debate was to determine if one of the federal powers to regulate commerce or to tax authorized certain provisions of the ACA.
His ambivalence, between progressivism and a more affirmed conservatism, led him to be supported by both the liberal and the conservative wings of the Court. Indeed, Roberts argued some points that satisfied one or the other wing of the Court. In accordance with his conservative views, John Roberts argued that the constitutional Commerce Clause did not allow the federal government to impose a private individual mandate (which is the legal obligation for certain people to purchase some special goods or services) by distinguishing the healthcare market and the health insurance market.
The conservative justices agreed because they conceive federalism in reference to the original meaning of the Framers of the Constitution who wanted, according to their belief, to protect the states’ power to regulate individuals against a federal government which would tend to be a “hideous monster” (Alexander Hamilton). But the liberal justices dissented, considering that this was a way to pay for healthcare used by 86% of the Americans, who are then health care consumers, which meant in turn that Congress can regulate it. And since this regulation is specified, it would not considerably expand federal power but it would enable it to tackle national problems that the states alone cannot solve. Moreover, their opinion reminded the logic of the Court in evaluating the constitutionality of the Social Security Act in 1935: it considered that taxing and spending for the general welfare was a possible exercise of the power of Congress. At that moment, they argued that healthcare was a vital issue whereas the conservative justices saw it as a common market good.
However, to the astonishment of some, Roberts eventually joined the liberal justices by “saving” the individual mandate because he considered that the payment for not having health insurance works like a federal tax collected by the Internal Revenue Service (IRS) rather than a penalty, so it can be imposed by Congress: is not unlawful but simply taxable.
The conservative Justices opposed that opinion because according to them, it contradicted the original meaning of the clause.
However, this possibility for Congress to indirectly influence individuals to have health insurance by taxation leads directly to a considerable expansion of federal power.
According to the chief justice, this would redefine the relationship between the people and the federal government when there is nothing in any opinion of the Court to limit the use of this now really broad taxing power that enables the federal state to force people to do something they do not want to do.
Surprisingly, 7 justices supported the rather conservative limitation of the expansion of the federal power by voting against its capacity to impose the condition of creating a broad new category of Medicaid beneficiaries (people under 65 and below 133% of the federal poverty level) on the federal funding allocated to the states for the entire Medicaid program.
Even if the Court often makes it possible for Congress to use Spending Power to indirectly regulate States’ issues because states are free to accept or reject federal funds and their conditions, here the Supreme Court agreed with the states. Indeed, these justices thought that in practice the states had no choice, there would be a federal coercion of the states that violates the core principle of federalism.
Chief Justice Roberts also opposed this indirect regulation because he saw it as a first step towards a dangerous comprehensive federal program to provide universal health insurance coverage instead of helping people who need it.
Although these different opinions may remind the old and bitter disagreements over New Deal legislation, it is evident that in spite of the questioned authority of the federal state and the substantial gap in the comprehensive insurance coverage due to the fact that states may refuse Medicaid expansion, the seemingly unlimited federal taxing power that resulted from Roberts’ decision leads us to nuance the so-called conservative turn for the Supreme Court of the United States under its Chief Justice Roberts’ presidency.