Supreme Court's Big Year Ends With Big Love
(This article is the third of a series by Noah Feldman recapping the major themes and issues of his Bloomberg View columns in 2013 and looking to the new year ahead.)
Deck the halls, then book several: Plural marriage is now legal in the state of Utah, just in time for the holidays. We have the U.S. Supreme Court's landmark same-sex marriage decision to thank for it.
Yes, the same Supreme Court that struck down the most important provision of the Voting Rights Act in the year's other landmark case. And that retrospectively gutted the universal coverage promised by the Patient Protection and Affordable Care Act. So is the Supreme Court of 2013 radically liberal or radically conservative?
The answer, it turns out, is both. A review of the current court's year confirms that it is the most activist since the 1920s, with plenty for both sides of the partisan aisle to hate and plenty for each to love. Because the court is a composite body in which all votes count equally, no individual today determines its overall strategy. But hidden in the confusion of divergent opinions lies a pattern that might be described as Chief Justice John Roberts's message to the Republican Party about its future.
The Roberts paradigm runs something like this: Lose gracefully on sex and personal autonomy; win on race, class and social welfare, with a pinpoint strategy of targeted killings and drone strikes. Remarkably, by following this plan, the Roberts court has turned into the most politically sophisticated wing of the Republican Party. Put another way, "John Roberts for President."
Start with the sex stuff. Liberals' favorite civil-rights case of the year is U.S. v. Windsor, which struck down the federal Defense of Marriage Act as a violation of the "status and dignity" of same-sex couples. By leaving in place state bans on gay marriage, the decision created a potential mess for couples married in the eyes of the federal government but not their own states. Yet liberals didn't care, because the decision, written by Justice Anthony Kennedy, was the legal culmination of the struggle for gay rights.
When the Supreme Court decided earlier gay-rights cases, such as 2003's Lawrence v. Texas, which struck down anti-sodomy laws, the conservatives, led by Justice Antonin Scalia, went a little bit berserk. In his Lawrence dissent, Scalia fulminated that the decision effectively gutted state laws "against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." In 1996, dissenting in Romer v. Evans, the first important gay-rights case, Scalia accused the majority of having "mistaken a Kulturkampf" -- German for culture war -- "for a fit of spite."
In 2013, things were different. Scalia still dissented, but instead of invoking a culture war that his side had already lost, he criticized the majority's legal craft, characterizing its rationale as "rootless and shifting." Then, in defensive mode, he insisted that the supporters of traditional marriage would never want to "degrade, demean, and humiliate gay people."
Roberts joined the dissent, which was so different from the earlier Scalia efforts as to almost seem written by a different hand. It was as if this new Scalia, guided by the graceful Roberts, wanted to avoid the screaming headlines that his invective once seemed designed to elicit. The message to the Republican Party was fairly clear: Gay marriage is a losing issue, so let's go gentle into that good night of defeat, and take our victories where we can get them.
Room for those conservative victories turned out to be pretty wide in 2013. On race, the Supreme Court chose not to strike down affirmative action once and for all in Fisher v. Texas. It sent the case back to the lower courts to do their analysis again, buying time for the public's disillusionment with affirmative action to grow further.
The court saved its powder for Shelby County v. Holder, which struck down section 4 of the Voting Rights Act. That law, the heart of the electoral side of the civil-rights movement, required formerly discriminatory districts to preclear any districting changes with the Justice Department and a special three-judge court.
Technical and ill-understood except by experts in voting, the law was the perfect target for a Roberts special-forces operation. His opinion emphasized that the law was perfectly terrific when passed in 1965 to fight racism. He added almost diffidently that it was now "based on decades-old data and eradicated practices." Racism was over because, well, um . . . Barack Obama was elected president, wasn't he? Justice Ruth Bader Ginsberg wrote a dissent demonstrating extensive evidence of ongoing racism in redistricting and voting. But her capacity for outrage was curtailed by the fact that her constitutional position was simply that the court should defer to Congress about whether the law was still needed. Deference is boring -- and anyway, she and the other liberals voted against deference in striking down the Defense of Marriage Act.
No summary of the most important Supreme Court events of 2013 would be complete without mentioning the sleeper cell that Roberts brilliantly planted in his 2012 opinion in National Federation of Independent Business v. Sibelius, upholding the individual mandate of the Affordable Care Act. The headlines said Roberts had broken ranks with conservatives and showed extraordinary judicial restraint. Less noticed was his holding that the states could not be pressured to extend Medicaid to the poorest uninsured Americans -- a holding joined by liberal pragmatist justices Stephen Breyer and Elena Kagan. Only this year did it become clear that roughly half the states would not join Obamacare, robbing the law of its ethical aspiration to ensure that all citizens have health insurance. Roberts the tactician had won a major victory without anybody noticing.
Rank-and-file Republicans and their political leaders may not be noticing the Roberts paradigm, but they should. Lose gracefully where you must, win quietly where you can. Fight your stealth battles, but be a gentleman about it. Roberts in 2016.
(Noah Feldman, a law professor at Harvard University and the author of "Cool War: The Future of Global Competition," is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman.)
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