Revision Update: US Politics: The Supreme Court

THE 2011 -12 TERM – CHIEF JUSTICE ROBERTS LEADS THE COURTThere can be little doubt that the ruling on Obamacare was the decision that was most eagerly awaited from the Court in this term, indeed many regard NFIB v Sebelius as a landmark ruling and one which define the Roberts Court. It is therefore worthy of detailed analysis. Several key points might be made in this regard.· The voting on the issue of the constitutionality of the Patient Protection and Affordable Care Act was surprising in that it was expected that it would Justice Kennedy who would provide the swing vote on the issue. It was anticipated that the usual conservative bloc of Roberts, Scalia, Thomas and Alito would face the liberal bloc of Ginsburg, Breyer, Sotomayor and Kagan, with Kennedy providing the pivotal vote. The fact that it was Roberts and not Kennedy that joined with the Liberals was therefore a great surprise.· Roberts did not sanction the act under the interstate commerce clause as the others did but under the right of Congress to levy taxes.· This action has meant that the Court has avoided being drawn into the political arena as it was with rulings such as Bush v Gore. It was an example of judicial restraint. In his opinion, Chief Justice Roberts stated “It is not our job to protect the people from the consequences of their political choices.”· The ruling has helped the Obama presidency.· In doing say Roberts has helped ensure that the respect for the Court is retained. This is a key determinant of its legitimacy, authority and power.

Before this ruling though, there have been signs that the Court has been increasingly seen to be divided upon partisan lines. With the departure of the liberal justices Stevens and Souter, both of whom were appointed by Republican presidents, voting on the Court increasingly reflects impact of presidential appointments. The liberals were appointed by Democrat presidents, conservatives by Republican ones. This was particularly to the fore in the Citizens United v FEC ruling from 2010.

In the last term however there seemed to be less signs of a clear ideological divide. Cases such as Hosanna – Tabor v EEOC were unanimously decided. Justices Kagan and Alito issued concurring opinions which might be regarded as an unlikely alliance and might be credited to the statecraft of Chief Justice Roberts.

Kennedy remained the key swing voter and showed that he support both liberal and conservative causes[1] and Justice Kagan voted with him more than with any other (83%) which might suggest that Court may not have the straight 4:4:1 split which is normally attributed to it. Chief Justice Roberts was in the majority 92% of the time which further supports the view that there is a new “centre” bloc emerging. Justice Kennedy had in the past shown a slight bias (60%) toward the conservative side but this was not evident in this term. Chief Justice Roberts was the swing voter, not only in NFIB v Sebelius (Obamacare) but also in Arizona v US

Generally, it would seem fair to say that the pigeonholing justices and courts as “liberal” or “conservative” is to be avoided. The Court and cases are too complex to allow such a shallow and easy analysis. Only 15 of the 75 cases were 5 – 4 rulings which would support the view that Court judges each case on its merits. Chief Justice Roberts seems to want to avoid the Court being overtly “political” and consequently has guided the Court to restrict itself to constitutional matters. In cases such as FCC v Fox TV and national Meat Association v Harris he has been able to secure unanimous rulings.

The conservative wing was able to prevail in several cases .These included:

1. Freedom for churches to choose their own ministers in the sense that it prevented government control

2. Restrictions on the Environmental Protection Agency planning controls

3. Florence v Board of Chosen Freeholders Strip searches regardless of the offence

Liberal “victories” for the court could include:

· US v Alavrez (securing free speech)

· Hosanna v Tabor (freedom of religion)

· US v Jones (need for a warrant for GPS trackers on cars)

· Maples v Thomas (right to appeal)

· Missouri v Frye (right to lawyer)

· Lafler v Cooper (right to a lawyer)

· Miller v Alabama (no to mandatory life sentences for juveniles)

· NFIB v Sebelius (Obamacare)

· US v Arizona (Arizona’s immigration laws too harsh)

THE 2012 -13 TERM

Fourth amendment rights

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This need for a warrant means that the police must secure permission from the (independent) judiciary before searches can be conducted. The right stems from 14^th century English law.

The right provides a great illustration of how the Supreme Court have been able to adapt the constitution to suit modern demands and issues which could not have been foreseen by the Founding Fathers. The right forms part of the rationale behind Roe v Wade 1973 which established a woman’s right to choose a termination based upon the right to privacy established in Griswold v Connecticut in 1965.

With the liberal Warren court 1953 – 1969 favored the rights of the accused against those of law enforcement orders. Hence Mapp v Ohio 1961 fourth amendment rights were imposed on all state criminal cases with regard to evidence obtained without a warrant which would be regarded as inadmissible from then on.

Perhaps more pertinently, in US v Katz 1967, the Court held that phone tapping was unconstitutional without a warrant. The fact that in 2013 in Clapper v Amnesty International the Court ruled that the government could undertake warrantless surveillance illustrates

1. How the outlook of the Court has changed since the days of liberal activism from the Warren Court.

Perhaps predictably the Court split upon ideological lines with a 5 - 4 split comprised of Roberts, Scalia, Alito, Thomas and Kennedy rejecting the arguments put forward as they lacked legal standing to present a case. Justice Alito argued the journalists presenting the case had not been affected by the law and so they could not sue.

The Court by denying standing to the plaintiffs has restricted cases that can be brought before it. Hence the ACLU point out that the judiciary have not ruled on:

a) Torture

b) Rendition

c) Targeted killings

d) Warrantless surveillance

This in part can be explained by the passive appellate nature of the Court. The Court needs to wait for cases to come before it before it can make a ruling. Even then, as in the case, a narrow interpretation of rights and the composition of the Court can result in a conservative decision which effectively undermines rights in the USA and beyond.

The New York Times argued that “The court’s decision is a clear-cut abdication of its fundamental role in the American constitutional system of checks and balances, which ensures that Congress and the president are not infringing on protected rights.”[2]

2. How the executive can undermine rights. The initial measures were introduced by the Bush administration after the 9/11 attacks and have been supported by the Obama administration since 2008.

3. How the legislature can undermine rights. In 2008, Congress amended the Foreign Intelligence Surveillance Act granting the executive the authority to conduct surveillance without a warrant.

4. The role of pressure groups in protecting rights. Amnesty International and the ACLU supported the case. The ACLU argued that the ruling leaves “privacy rights to the mercy of political branches.”

The same principles were in play in Maryland v King which considered whether DNA could be collected from those arrested but are yet to be found to be guilty. Under the principle of innocent until proven guilty, the collection of DNA could have been viewed as an invasion of privacy.

Maryland Court of appeals had held that collection of DNA of those arrested but not yet convicted violated the Fourth Amendment.

ABORTION AND THE IMPACT OF THE PRESIDENTIAL AND CONGRESSIONAL ELECTIONS

During the actual campaigns abortion was a key issue that was to the fore. At the presidential level, the candidates stated their positions. Mr Romney distanced himself from his previous position when governor of Massachusetts and adopted less of a pro-life stance. At the Senate level, two Republican candidates were defeated in what were winnable states after declaring that a woman could “close her body down” to end a pregnancy and that even rape was part of “God’s plan”.^[3] Ultimately the ability of the president and the Congress to affect the availability of abortions is restricted to:

1. The appointments a president can make to the Supreme Court and
2. Controlling the funding that can be allocated to organisations such as Planned Parenthood.

With regard to the former, the constitutionality of abortion rights has been long established with the Roe v Wade ruling of 1973. Many regard this as being part of the political landscape. Previously, when there has been a conservative majority on the Court, Roe has been upheld with rulings such as Planned Parenthood v Casey (1992). The availability of abortion though has been undermined by rulings such as Webster v RHS (1989)and Rust v Sullivan (1991).

Consequently is it is highly unlikely that Roe v Wade would have been overturned even if Mr Romney had won and had been able to make appointments to the Court. If pro-life justices had been appointed then the possibility of abortion rights being chipped away with marginal changes here and there could have been a more likely possibility.

Mr Obama’s victory is likely to lessen such a development. The Court is finely balanced with: a conservative wing of Roberts, Thomas, Scalia and Alito; a liberal wing of Ginsburg, Breyer, Sotomayor and Kagan and centrist voter with Kennedy. Ruth Bader Ginsburg is 79 and has spoken of retirement, Justice Kennedy is 76.

If Justice Ginsburg were to retire during Mr Obama’s second term, he could appoint another liberal pro-choice justice and so there would be no real impact upon the balance of the Court. If however, Justice Kennedy were to go, this would be have greater significance as a centrist, conservative leaning justice, could be replaced by a liberal. This would represent a significant change in the balance of the Court potentially for some time to come. Presidential appointments to the Court long outlast a presidential term and are regarded as the president’s greatest legacy. President G.W. Bush was able to appoint the conservative Justice Alito to replace the centrist justice O’Connor in 2006 and his impact has been marked. There are no signs that Justice Kennedy will retire. It is argued that justices sometimes like to wait until there is a president of a similar political outlook to themselves before they retire. In judicial terms, at 72 Kennedy is “nowt but a bairn^[4]” as they say in Yorkshire. Justice Stevens was 90 years old when he retired in the 2010.

Presidential nominations require a simple majority vote in the Senate. After the 2012 election, the Democrat majority increased from 53 to 55^[5], thus strengthening Mr Obama’s hand. There is a possibility though that Republicans could use the filibuster to oppose a nomination so this power of appointment is not completely unchecked.