The New Yorker
By Jeffrey Toobin
September 1, 2015
The
beleaguered liberals on the Supreme Court had a great deal to celebrate
in the term that ended in June. Two epic cases, and even some lesser
ones, went their way.
In Obergefell v. Hodges, the Justices ruled, five to four, that all
fifty states must recognize same-sex marriages. And in King v. Burwell,
the Court, by a vote of six to three, dismissed a challenge to the
Affordable Care Act that might have, as a practical
matter, destroyed the law. A surprising victory in a
housing-discrimination case and another where the Court allowed limits
on judges’ soliciting campaign contributions completed a major run of
progressive victories.
Don’t
expect the streak to last. The liberals’ big victories last term arose
from a very particular set of circumstances. Justice Anthony Kennedy has
displayed a consistent
respect for the rights of gay people, which made his alliance with the
four liberals (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and
Elena Kagan) on same-sex marriage almost a foregone conclusion. In King
v. Burwell, a group of conservative legal
activists pushed such a transparently fraudulent claim about the text
of the Obamacare law that Chief Justice John Roberts and Kennedy (who
are no fans of the law) had to reject the claim.
But
the conservatives on the Court are poised for a comeback, and the
subjects before the Justices appear well suited for liberal defeats.
Consider:
Affirmative
action. The Chief Justice has been primed to get rid of any kind of
racial preferences since he took office, a decade ago. In 2013, in
Fisher v. University
of Texas, the Justices essentially kicked the issue of affirmative
action in college admissions down the road. Lower courts upheld the
Texas plan, which allows an extremely limited use of racial diversity in
admissions. Now the Supreme Court has agreed to
hear the case a second time—an unusual step in itself. It’s hard to
imagine that the Justices reached out for this case again simply to
preserve the status quo. A decision limiting—or eliminating—racial
preferences in admissions seems highly likely.
Abortion.
After the Republican landslides in the 2010 midterm elections, more
than a dozen states tightened their restrictions on abortion. No state
banned abortion altogether,
but several came close. Some have banned abortion after the twentieth
week of pregnancy, and others have imposed requirements on clinics that
make them virtually impossible to operate. (For example, the laws
require that doctors who provide abortions must
have admitting privileges at local hospitals; they also impose on
clinics the building standards of ambulatory surgical centers.) In
Texas, the new rules would require all but nine abortion providers in
the state to close their doors. It’s true that, in June,
five Justices (the liberals plus Kennedy) issued a stay, preventing the
law from going into effect; but Kennedy has favored limits on abortion
in recent years, and there is every reason to believe he will support
these new ones, too.
Public-employee
unions. At the end of June, the Justices agreed to decide Friedrichs v.
California; it could sharply limit the power of public-employee unions,
which have
been bulwarks of support for Democratic office-holders. In states like
California, public employees who choose not to join a union must still
pay the equivalent of dues (“fair share” fees) when the union negotiates
their contracts. If the challengers win this
case, the unions may lose millions of dollars in revenue, with a
consequent loss of power. Since public-employee unions have done so much
better than private-sector unions in recent years, that would hurt the
union movement as a whole in an especially vulnerable
place. The campaign against fair-share fees has been a special crusade
for Justice Samuel Alito, and he may kill them off for good this time.
There
is not yet a major campaign-finance case before the Justices, but in an
election year it would be no surprise to see one surface. The
conservative majority, led
in this case by Kennedy, has shown no sign of backing away from its
Citizens United decision, from 2010, which said that campaign
contributions are a form of free speech. On the rights of criminal
suspects, especially those sentenced to death, the Court remains
deeply conservative as well. It only underscores the magnitude of the
liberal victories in 2015 to recognize that they may seem deeply
aberrational in 2016.
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