Why can’t we liberals savor our victories? The day after the Supreme Court decided to uphold the Obama administration’s signature legislative achievement, the Affordable Care Act (ACA), Neal Katyal, who defended the law in the lower courts as acting Solicitor General for the Obama administration, published an op-ed in The New York Times that called the decision a “pyrrhic victory.” This was followed by another op-ed two days later in the same paper by Stanford Law School’s Pam Karlan, who called the case “no respite for liberals.”
Similar outcries greeted the Court’s decision to strike down three of the four provisions in Arizona’s anti-immigration law that the United States had challenged as conflicting with federal law. Instead of celebrating a decision that stopped in its tracks much of the anti-immigrant movement’s effort to enact harsh state laws, civil rights and immigrants’ rights groups lambasted the Court for “upholding” one of the four provisions (the requirement that Arizona police officers inquire into the immigration status of an individual who is stopped for some other lawful reason if they have reasonable suspicion that the person is in violation of federal immigration law). The fact that the Court had struck down the other three provisions was almost passed over.
And as the health care and immigration law decisions rounded out a Supreme Court term that included a number of outcomes favored by liberals, the Times’s own lead editorial on the term, entitled “The Radical Supreme Court,” said the Court’s “conservatism calls to mind the defiance of the court in the 1930s when it regularly struck down New Deal statutes during the Great Depression.” This was despite the fact that the court this term extended Fourth Amendment protection to GPS monitoring of cars; declared unconstitutional “indecency” fines imposed on ABC and Fox for brief nudity and expletives; extended Sixth Amendment right to effective assistance of counsel guarantees to guilty plea negotiations; barred mandatory life without parole sentences for juveniles; and applied Congress’ liberalization of crack cocaine sentences retroactively to defendants who had committed their offences prior to the liberalization but were sentenced thereafter.
What’s going on here? Why can’t we recognize a win when it is handed to us on a silver platter? In both the health care and immigration law cases, the overall outcomes were broad victories for liberals. After all, the Affordable Care Act’s individual mandate was upheld, as was the requirement that states expand their Medicaid coverage substantially if they want to remain eligible for federal funds. And while it is true that five Justices concluded—wrongly in my view—that Congress could not have forced individuals to purchase health care under its power to regulate commerce, that decision is unlikely to have much practical impact. The ACA was the first time in US history that Congress even tried to require people to purchase something they did not want, and its mandate was ultimately upheld as a proper exercise of Congress’s tax power.
The justices in the health care majority did impose limits on Congress’s spending power, as Karlan’s article pointed out. They held that while Congress can condition new federal funding on state expansion of Medicaid to cover a broader class of individuals, Congress cannot deny states pre-existing Medicaid funding if they fail to expand their coverage. In a sign of just how crazy politics have become, five Republican governors have now threatened to reject the new federal funds—even though under the program the federal government would initially pick up all of the new costs of expanded coverage, and 90 percent of the costs of expansion long-term. Only time will tell whether state governors will be willing to deny their own citizens billions of dollars of federal assistance in order to make a symbolic partisan point. But more generally, this aspect of the decision—which was joined by Justices Stephen Breyer and Elena Kagan—was very fact-specific, and turned on the vast amount of money involved and the radical changes effected by the ACA; it is unclear that it will present any serious obstacle to Congress’s ability to craft future spending programs.
Liberal critics are right to point out that the health care law should have been easy to uphold on constitutional grounds, given Supreme Court precedents recognizing Congress’s plenary power to regulate economic matters, so the fact that it was decided by a single vote is worrying. But surely it is good news that even though the law’s challengers spent over $200 million on advertising to support the legal challenge, dwarfing the amount spent by the law’s defenders, the end result seems to have been dictated by law, not money.
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Similarly, in the immigration law case, while the Court left standing the “check your papers” provision, it did not actually uphold that provision. The majority merely ruled that it was too early to declare the provision invalid on its face, before it had ever been applied, because the provision includes safeguards that, if honored, might render it consistent with federal law. In doing so, the Court warned that the Arizona police could not detain persons solely for the purpose of checking their immigration status, or extend their detentions for such purposes. And it noted that if the law were executed in ways that violated federal laws, such as the prohibition against discrimination, future legal challenges would be appropriate.
Why, then, are we loath to acknowledge that the Court did the right thing in these and other cases this term? In part, I fear it is a reflection of our intensely partisan culture, in which demonization of the other side is de rigueur, and it has become increasingly difficult to recognize that the other side has done anything good. It may also be a function of expectations; we have come to see this Court as radically conservative, so when it does something that departs from that position our first inclination is to be suspicious.
And in part, it may be the tendency of too many liberals to let the perfect be the enemy of the good. The progressive television news show “Democracy Now,” in a special broadcast the morning the health care decision came down, featured activists criticizing the Court for upholding a law that they see as coddling the insurance industry. (They argued that the law should have been struck down for failing to create a single-payer system, even though that policy question was not even before the Court.) Upholding the ACA on Commerce Clause grounds would have been preferable to the taxing power theory around which the majority coalesced, and we’d rather the Arizona law had never been enacted. But we don’t live in an ideal world, and in this world, it is a very good thing that the Court upheld health care and invalidated most of Arizona’s law.
This is not to say that there aren’t legitimate grounds for concern. This Supreme Court is indeed fundamentally conservative. The fact that Chief Justice Roberts has sided with the Court’s four liberal Justices a grand total of once in the more than one hundred 5-4 cases since he joined the Court (and that Justices Antonin Scalia and Clarence Thomas have done so only twice, and Samuel Alito never), makes clear how divided, and conservative, this Court is. Still, the surprising number of liberal results this term suggests that the picture is more complicated.
The Arizona and health care cases in particular may best be understood as instances in which the Court was simply unwilling to go as far as the radical conservative political movements that have taken hold in the country at large wanted it to go. The Arizona law was driven by extreme nativist groups, and the most vocal challengers to the health care law came from the Tea Party. It is important not to lose sight of how conservative the Court is, particularly as it prepares next term to take up questions of affirmative action, voting rights, and gay marriage. But at the same time we should celebrate the fact that—on these two crucial decisions—the Court was unwilling to join forces with such hard-right and well-funded forces.
At least sometimes, the rule of law, and fidelity to precedent, constrain conservative judges to reach liberal results.
This is the second of two posts on the Supreme Court’s surprising 2011-2012 term. Yesterday Ronald Dworkin considered why Chief Justice John Roberts might have changed his mind in the ACA case.
