In its final round of decision-making for the season, the Supreme Court exhibited some predictable alignments and some surprising ones.

To take the predictable ones first: the Court decided that closely-held corporations like Hobby Lobby could on religious grounds refuse to provide employees with health insurance that includes contraception coverage.    The court also ruled that home health-care workers who could be regarded effectively as public employees cannot be compelled to pay dues to unions representing them.   Both rulings were decided by 5-4 majorities.  Both alignments were predictable because the justices’ positions corresponded precisely to their known political and ideological biases.   The Hobby Lobby case was really ultimately about abortion; the five justices in the majority are indifferent or hostile to abortion rights while the four dissenters are favorable.   The union case was about labor.  Conservatives generally don’t like unions, so the five justices on the right struck a blow for the anti-union cause.  The four dissenting justices reflected a liberal tradition of sympathy for organized labor.

That’s not the way it should be, according to popular mythology.  In their confirmation hearings, Court nominees are routinely asked if they will uphold the law, including the Constitution, without regard to ideology or politics.  They invariably respond that of course, they will not allow themselves to be influenced by considerations extraneous to the law.   But questioners and nominees alike know that this is so much play-acting.   The Supreme Court is a political institution, and the justices for the most part act politically in the ways they are expected to.   The question each judge asks him/herself is not so much, “how does the law apply to this case?” but “what can I find in the law that supports my policy preferences?”   If it weren’t that way, then these two decisions, like many others, would not be so predictable.

The Court’s politicization is no less evident in the justices’ approach to our overarching law, the US Constitution.  Difficult to amend, the Constitution is an unflexible document written over 200 years ago for the needs of a largely agricultural society of a few million souls.   It cannot possibly provide meaningful guidance for the conduct of affairs in the 21st century.   But no one can admit this—the Constitution, after all, is a revered icon of the American political order.

Conservatives get around the problem by pretending that it ain’t so, that the Constitution remains as valid and relevant as the year it was written and so the original intent of the Constitution’s authors can and must be adhered to faithfully in interpreting our laws. Liberals are more sophisticated.  Implicitly, they recognize that the Constitution is badly dated, so they find work-around concepts, like the living constitution, or–more creatively–multiple unwritten constitutions.   The conservative jurist Richard Posner does a nice job debunking both conservative and liberal rationalizations of their respective judicial philosophies.

The different solutions to the problem of constitutional obsolescence offered by right and left serve the two sides’ respective ideological preferences.   If you’re a believer in small government, it is convenient to insist on the relevance of a document that couldn’t possibly anticipate the myriad functions government would take on in the coming centuries.   If you believe in active government, then you have to find ways to stretch and work around.   Ideology precedes and shapes judicial philosophy.

Now I come to the recent surprising Court alignments, which seem to contradict much of what I have just said.   The Court reached unanimous decisions on two politically charged cases—buffer zones for abortion clinics and the president’s appointive powers during Congressional recesses.   In both cases we might well have expected the four justices appointed by Democratic presidents to have dissented, as they did in the ones discussed above.   And it is certainly possible to cite other instances of justices voting against their presumptive ideological positions.   Isn’t that evidence that justices do, after all, put constitutional and legal considerations before politics and ideology?  Maybe, but the opacity of Supreme Court deliberations makes it hard to know what motivates individual justices’ choices in individual cases.  Sometimes, justices don’t want to seem entirely predictable.  Besides, the Supreme Court, like more worldly bodies, has internal politics—there are cajoling, horse-trading and sometimes tactical decisions not to fight a battle not worth fighting.  Both of these unanimous decisions were less than absolute—in the buffer zone decision, for example, the Court acknowledged that the state does have a legitimate interest in providing for the safety of clinic users, and left open alternative approaches to that objective.  Maybe the potential dissenters thought this was better than nothing, and so went along with the majority.

Both of these decisions do, however, illustrate the off-center nature of the Court.  If we imagine the nine justices arrayed on a left-right continuum, we can observe four justices clustered just to the left of center, one just to the right, and four way over on the right. There is no Nino Scalia of the left on the Court. If there were, these two dubious (at best) decisions would not have been unanimous.  Lefty Scalia would have voted against, and he/she might well have convinced one or two of his more centrist liberal colleagues to hold fast.   The right tilt on the Court reflects not only the fact that more of the justices have been nominated by Republican than by Democratic presidents, but also the Democrats’ reluctance to nominate uncompromising progressive candidates who would inevitably prompt unremitting frothing fury on the right.   So, while there are four undeniable “movement conservatives” on the Court, there are no militant liberals.   The Court therefore is very highly skewed to the right.   In that respect, it mirrors fairly accurately the larger US power structure of our time.



  1. Daniel July 1, 2014 at 6:57 pm

    I’m generally sympathetic to what you say in this post, but I want to take some issues with some of the details.

    First, hobby lobby was not a constitutional case. It was a statutory case, about the religious freedom restoration act (RFRA). You might say that the same issues arise, and that in statutory as in constitutional interpretation, justices will just attempt to impose their policy preferences. And I think that’s generally right, but the set of issues in hobby lobby is a bit tricky.

    There was a constitutional case in 1990, Employment Division v Smith, where Scalia was in a majority with Brennan and Marshall (though to be fair, they wrote concurrences, rather than joining the majority opinion). Scalia’s majority opinion was relatively broad, and it held that the free exercise clause does not guarantee religious exemptions to generally applicable laws (basically, laws that aren’t targeting religious practice).

    Now in that case, the religious exemption sought was by Native Americans, for peyote smoking, so the particular outcome was probably consistent with Scalia’s policy preferences (he’s no fan of drugs). But the reasoning was broad enough that it definitely would not have supported the outcome in hobby lobby, if that outcome had to be decided on constiutional grounds.

    The decision was unpopular, and that led to the passage of the RFRA, which basically guaranteed by statute what the court found was not guaranteed by the constitution. So while this is a case in which justices voted with their policy preferences, (a) it’s not clear they would’ve done so if it had to be decided on constitutional grounds, and (b) claims about the constitution played no role in their reasoning.

    Incidentally, on the identification of Posner as a conservative jurist, in 2012, he said the following: “I’ve become less conservative since the Republican Party started becoming goofy.” He was very critical of the citizens’ united decision too. I think you generally find the left/right spectrum more helpful for categorizing views than I do, but even if you think it’s generally helpful, it’s not so clear where to place 2014 Posner.

  2. tonygreco July 1, 2014 at 10:18 pm


    Thanks for the comment and the background.

    I don’t think we disagree, though I might modify your observation that it’s not clear how the justices would have voted on Hobby Lobby had it been decided on constitutional grounds. Of course it can’t be clear, because it can only be a matter for speculation. But it’s rare these days for any really important, politically fraught Court decision not to be decided along familiar politico-ideological lines, and that includes Kennedy on the right. So, while we obviously can’t be certain, it’s reasonable to expect that general pattern to persist.

    On Posner: You’re right that he has changed since the financial crisis, and I’m not sure how to characterize him today. Certainly, the pre-2008 Posner was a conservative, though not a radical rightist (which is what “conservative” is often understood to mean today).

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