The Elephant in the Courtroom

Daily Comment« Threatened Main March 6, 2012
The Elephant in the Courtroom
Posted by Jeffrey Toobin
It’s been a rough few weeks for the conservative movement. The Republican Presidential primaries, while lurching toward a conclusion, made a conservative takeover of the White House look more unlikely. Congressional Republicans got bogged down in a debate about insurance coverage for contraception. And Rush Limbaugh, the town crier of the movement, lost a passel of sponsors after he made comments about a law student that were grotesque even by his standards. Still, amid these grim tidings, there remains for conservatives a reliable source of good news: the Supreme Court.

Last week, the Court heard arguments in Kiobel v. Royal Dutch Petroleum, a case of tremendous interest to both corporations and human-rights activists. The question there is whether foreign nationals can file lawsuits in the United States for serious violations of human-rights law. At the oral argument, the conservative majority showed considerable sympathy for the view that these cases had no business in the federal courts. Yesterday, the Court signaled even greater enthusiasm for that position. In a rare move, the Court ordered the Kiobel case re-argued next fall—and put before the parties the broader question of whether cases of this kind should ever be allowed to proceed. It’s very likely that the Court’s answer will be an emphatic no.

This the second recent occasion in which the Court ordered a re-argument; the other was the signature case of the Roberts Court: Citizens United v. Federal Election Commission. Previously, the Justices had not done so since Warren Burger was Chief Justice. When Citizens United was first argued, in March, 2009, the issue was a fairly narrow and technical one: whether, under campaign finance law, a non-profit corporation could fund a pay-per-view broadcast of a political documentary in the thirty days before a presidential primary. If the Court had simply decided that question—which was all that was necessary to resolve the case—Citizens United would only be of interest to the cognoscenti. Instead, the Justices ordered Citizens United to be re-argued in September, 2009, and three months later issued an opinion that transformed American politics. The Court said that corporations (for-profit as well as non-profit) had the First Amendment right to spend unlimited amounts on behalf of candidates.

These are only the famous cases. The conservative agenda thrives at the Court in lesser-known decisions, as well. Last spring, for example, in a case out of Arizona, the Court made it much harder for citizens to challenge government expenditures that support religion. This was part of a pattern of cases in which the Justices have erected barriers to lawsuits by individual citizens against the government or corporate defendants. In Arizona Christian School v. Winn, the Court gave the green light to states to give tax credits for individuals who send their children to parochial schools. As this decision illustrates, the Roberts Court is more amenable than its predecessors to lowering the barriers between church and state. (The issue is every bit as important as whether church-affiliated universities should provide birth control to their employees, but it has received a fraction of the attention.)

The Court also has affirmative action in its sights. In 2003, the Court, by a five-to-four vote, upheld the admissions program at the University of Michigan Law School in Grutter v. Bollinger. In the most famous opinion of Justice Sandra Day O’Connor’s long career, she said the cause of diversity in higher education was important enough to allow racial preferences, at least for the next twenty-five years. Now, just nine years later, the Roberts Court looks to be sending O’Connor’s handiwork to the dustbin. The Court just agreed to hear Fisher v. University of Texas at Austin, which is a direct challenge to Grutter. With Samuel Alito having taken O’Connor’s place (and Elena Kagan recused), the result in Fisher seems preordained. And later this month, the Justices will hear arguments on whether President Obama’s heath care-reform—the central achievement of his administration—should be declared unconstitutional.

There’s always an imbalance between what gets attention and what matters. Think of all the print and pixels spent on Herman Cain, or Sarah Palin. In its quiet methodical way, the Roberts Supreme Court is advancing the agenda that the Republican Presidential candidates are stumbling to achieve. Rush Limbaugh may be having a bad week, but John Roberts is having a good decade—with several more likely to follow.