The Supreme Court underscored its power to shape American life when it took major cases about the health care reform law, Arizona’s anti-immigrant law and the Voting Rights Act in an election year. But this is not simply a case of the court thrusting itself into politics.
The way these cases developed and made their way to the highest court also illustrates the reverse — how politics shape the court. Each case grows out of a struggle between left and right where politics have pushed the law: between a quest for universal coverage and the defense of big health care providers; between an emphasis on openness and hostility toward immigrants; and between a promise of access to the voting booth made nearly 50 years ago and the unyielding opposition to keeping that promise.
Each party has its program and works to turn it into law. The great example of political change through legal change was the long, methodical effort to whittle away at segregation from within the legal mainstream that culminated in the court’s decision in Brown v. Board of Education. The conservatives’ legal-political strategy draws from Brown, but it is also vastly different in nature and design.
The struggle for school desegregation was waged by and on behalf of oppressed minority groups seeking to make good on the Constitution’s promise of equal rights. They faced strong opposition from the most powerful people in our society, in courts that were not necessarily sympathetic or overtly hostile to their cause. And they fought a long, incremental campaign.
When Lewis Powell Jr. energized conservatives by writing in 1971 that “the judiciary may be the most important instrument for social, economic and political change,” he was himself an incrementalist and expected others to be.
But the conservative legal battles of our modern times are being waged by the most powerful, often against the weak and oppressed. They began with a carefully planned and successful effort to reshape the courts to be sympathetic to conservative causes. They are largely aimed at narrowing rights, not expanding them — except where property and guns are concerned. And beginning with the Reagan administration, conservatives became impatient with the pace of change brought about from within the mainstream. They sought to remake law into a weapon of aggressive action.
The court’s health care reform case arose from a decision by Judge Roger Vinson of Federal District Court in Pensacola, Fla., striking down the Affordable Care Act as unconstitutional. It demonstrates the enduring influence of the Reagan administration, which put a premium on picking judges who would carry out its ideology and on countering liberalism with pointed conservatism any way possible.
Besides nominating Judge Vinson and getting him confirmed by a Republican-controlled Senate, the Reagan Justice Department published conservative positions on states’ rights and other issues in executive-branch opinions to promote them before courts took them seriously.
Citing conservative scholarship about the narrow meaning of the Constitution’s commerce clause, the Vinson opinion presents the Reagan view of economic liberty — an idea that was judged faulty by established scholars during the Reagan era but now carries great influence.
The Bush administration revived this practice, which led directly to the Arizona case. One of its most notorious opinions asserts the power of states “as sovereign entities” to crack down on illegal immigration even if the federal government has not delegated them that power. The author of the Arizona law cited the authority granted in the 2002 memo as a basis for it, and the memo underlies similar efforts in a growing list of other states.
The Reagan administration expressed its antipathy to the Voting Rights Act in politics and law — in its effort to persuade Congress not to strengthen the act in 1982, for example, though Congress did, and in a 1985 Supreme Court test of the extension of the act that was passed.
The case has defined the sides in many battles since about control of American democracy — between Democrats’ interest in protecting minority voters and their representation and Republicans’ insistence that the law is being misused to create racial quotas in government.
In 2009, the Supreme Court ducked ruling on the constitutionality of the Voting Rights Act in an opinion by Chief Justice John Roberts Jr. that nonetheless laid out arguments for its unconstitutionality. The opinion is widely read as a warning that the law is vulnerable to being struck down by the conservative court.
The political influences on these major cases are important by themselves, but also as a reminder that the makeup of the court for the next generation, and thus the law’s direction, are likely to be determined by the 2012 election.
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