In the last week of June, a sharply divided Supreme Court ruled largely in favor of the federal government’s position in two of the last term’s major cases, upholding important provisions of the Affordable Health Care Act and striking down significant parts of Arizona’s draconian immigration law.
But along the way, the justices expressed an unusual level of distrust in and disrespect for the other branches of government. In the health care oral argument, for example, Justice Anthony Kennedy mused that when the political branches step beyond what the Court’s existing cases “have allowed,” lawmakers face “a heavy burden of justification to show authorization under the Constitution.” The traditional presumption is that federal statutes are constitutional until proven otherwise. In the Arizona case, Chief Justice John Roberts cut off Solicitor General Donald B. Verrilli, Jr.—the government’s chief attorney before the Court—before he could utter a complete sentence.
The justices’ written opinions expressed similar disdain for the rest of the federal government. In the health care cases, Chief Justice Roberts pointedly distanced himself from the wisdom of enacting health care legislation and warned of the danger of congressional overreaching. And in his dissent in the Arizona case, Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel Alito, went far outside the record of the case to denounce the Obama Administration’s decision not to deport young, law-abiding immigrants who had come to the United States as children. During the Reagan administration, by contrast, Justice Scalia was more forgiving. He thought it was up to the president to decide whether to prosecute violations of federal law because such decisions involve “the balancing of various legal, practical, and political considerations, none of which is absolute.”
Read the rest of Pam Karlan’s “Contempt of Court” (Boston Review, November/December 2012)
[Students] should not be singled out for special and discriminatory treatment. I have the further very literal feeling that this is almost a denial of their right to equal protection of the laws … Nor do I think has any evidence been presented that these people, these young people just beginning their years on the whole should be singled out for special and as I view it discriminatory treatment. I suggest to you that this may at least in spirit be a denial of their right to equal protection with the virtual pole star of our constitutional ambit.
University of Connecticut law professor Philip Schuchman testifying before Congress on the first law that made student loans non-dischargeable in bankruptcy.
For more, see Moe Tkacik’s column “The student loan crisis that can’t be gotten rid of”
Rather than anticipating progressive social change, the Supreme Court most often reflects it. The Court did not express serious constitutional skepticism about sex discrimination until 1970, significantly after Congress had enacted the Equal Pay Act and forbidden sex discrimination in employment as part of Title VII of the Civil Rights Act of 1964. Similarly, by the time the Court struck down Texas’s sodomy statute in Lawrence v. Texas in 2003, most of the states that had at one time criminalized gay sex had abandoned those laws on their own.
Even when the Court articulates constitutional requirements, the active participation of the political branches is needed to meet those requirements. Brown was decided in 1954, but in 1964, less than 2 percent of black schoolchildren in the South attended schools with even a single white student. Real desegregation did not begin until the fall of 1969. Why then? Because the federal Department of Health, Education, and Welfare issued guidelines requiring desegregation and threatened to cut off essential federal funds to school systems that did not comply.
How does this history—this interplay between courts and democratic politics—bear on the question of marriage equality?
—Stanford Law’s Pamela Karlan on the future of same-sex marriage and the Supreme Court