Obama and the Supreme Court: A Political Commentary

About the author
Matthew Lakin is researching a DPhil in Politics at the University of Oxford. The views represented in this article are solely those of the author and may not be construed as in any way representative of the views or policies of Oxford Royale Summer Schools.

US President Obama
This article will seek to make one central argument: that the highest judicial court in the United States – the Supreme Court – makes landmark decisions that, pro tanto, reflect the prevailing politico-ideological climate of the country.

The article situates this argument into some contemporary historical and political context, and then will be applied to some of the landmark decisions that have occurred under President Obama. As such, this argument will hope to sketch the prevailing interpretation of the Constitution under President Obama vis–à–vis the landmark decisions made by the Roberts Court. This approach closely corresponds to a branch of jurisprudence called ‘critical legal studies’: a school of thought which argues that law is neither neutral nor value free but is in fact inseparable from politics.

The Roberts Court (2004-present)

The US Supreme Court is, like other supreme or constitutional courts, the highest court in the land. Unlike other courts however it has the routine charge of being an institution that is as political as the other two branches of government. Much of this lies in its power of judicial review, a power deemed constitutional by the Supreme Court with reference to Article III of the Constitution since the Marbury v. Madison decision in 1803 by invoking ‘original jurisdiction’. Judicial review is, simply, the power of the court to review the constitutionality of a statute or treaty, or to review an administrative regulation for congruence or consistency with the state, treaty and/or the Constitution. To expect an apolitical or neutral Court is – despite protestations to the contrary by the justices themselves and some commentators on the Court –  wrongheaded.  The various judicio-philosophical-political conceptual schools of interpretation – originalism v. living constitution or strict constructionism v. loose constructionism or judicial restraint v. judicial activism – are all testament to the competing, conflicting and contesting conceptions of the Constitution.
Ronald Dworkin – the renowned scholar of constitutional law – argues that the Supreme Court decisions are not between democratic decisions or non-democratic decisions, but based on what kind of democracy Americans want. Some justices that are nominally conservative will predictably scorn a majority decision that accords with liberal opinion and vice-versa. For Dworkin, a theory of law is a theory of how cases ought to be decided, and thus he sees a compatibility between judicial review and the principles of democracy. Jeremy Waldron – the Chichele Professor of Social and Political Theory at All Souls, Oxford – takes the opposite view. For Waldron, legislatures are more legitimate, egalitarian and participatory than courts:
 ‘…judicial review is vulnerable to attack on two fronts. It does not, as it often claimed, provide a way for society to focus clearly on the real issues at stake when citizens disagree about rights…And it is politically illegitimate, so far as democratic values are concerned: by privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality.’
The argument between Dworkin and Waldron is illustrative of the controversy of the role and the decisions – both in terms of processes and outcomes – of the Supreme Court in the politics of America. The contemporary politics of the Court, restating the central political  analysis orientation of the article, provides a spot light on higher and prevailing ideological trends in American society. Recent eras of the Supreme Court serve to illustrate this.

The Courts of Warren, Burger and Rehnquist: From Reform, Consolidation and Reaction

This tussle between judicial review and the principles of democracy, or, the demarcation between the powers of the elected branches of government – the President and Congress – and the judiciary is ongoing. Nevertheless, over the last fifty years there has been a striking mirroring of the attitudes of political elites – and to a lesser, but nevertheless still representative, degree of the population – and the decisions made by the Supreme Court.
The Warren Court – the Supreme Court led by Chief Justice Earl Warren between 1953 and 1969 – was a ‘liberal court’ insofar as it extended judicial power by expanding rights and powers in three ways: civil rights, civil liberties and the scope of federal power. On civil liberties, there were a number of landmark cases that moved the United States in a more liberal direction on civil rights. Most notably was the unanimous Brown v. Board of Education decision in 1954 that declared that state laws that enacted separate public schools for black and white students were unconstitutional. For the Warren Court, the practice of segregation in schooling was a violation of the ‘equal protection clause’ in the Fourteenth Amendment of the Constitution. In the same year and with another unanimous decision, the Supreme Court in Hernandez v. Texas decided that Mexican Americans and all other racial groups in the US had equal protection under the Fourteenth Amendment. The Warren Court’s opposition to racial inequality and desegregation policies complemented the push towards civil rights recognition in the Eisenhower fifties and more so in the Kennedy-Johnson era of Democratic liberalism.

Civil liberties were also expanded comprehensively in the Warren era of the Court. Mapp v. Ohio (1961), in a 6-3 decision, deemed unconstitutional the use of evidence obtained in violation of the Fourth Amendment (protecting against ‘unreasonable searches and seizures’) in state law criminal prosecutions. Gideon v. Wainwright (1963) further handed power to the accused by providing counsel in criminal cases under the Fourth Amendment. Freedom of the press was protected with the unanimous decision in New York Times Co. v. Sullivan (1964) and in the landmark of landmark cases of the 1960s Miranda v. Arizona (1966) in a 5-4 opinion decided that suspects in a crime case will only be considered at trial if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning (the defendant must be aware of their rights).
Federal power expansion – in line with the ‘New Frontier’ policies of President Kennedy and the ‘Great Society’ liberalism of President Johnson – animated other landmark decisions of the Warren Court. Lobbying was regulated in United States v. Harriss (1954); official school prayer deemed unconstitutional when composed by state officials in Engel v. Vitale (1962) and the appropriation of private property for public purpose was legal with ‘just compensation’ in Berman v. Parker (1954).

Warren – aided by ‘the most influential Justice of the [20th] century’ and apostle of liberal judicial activism Justice William Brennan – managed to stamp a distinctively judicial activist-loose constructionist-and living constitution-unenumerated rights legacy on the Supreme Court. Warren’s successor – Warren E. Burger – was largely ineffective at overturning the vestiges of Brennan-Warren liberalism, and was thus a Court of consolidation. Burger was Chief Justice from 1969 to 1986 and managed to preside over perhaps the most controversial decision of all time – possibly with the exception of Dred Scott v. Sanford (1857) and Bush v. Gore (2000) – Roe v. Wade (1973), which was a 7-2 opinion that decided the right to privacy under the due process clause of the Fourteenth Amendment extended to a woman’s right to an abortion. There were other decisions such as US v. Nixon (1974) which unanimously decided that President Nixon – in the light of the Watergate affair – did not have privileges that other branches of government were deprived of in regard to the withholding of information. However, on the whole, Burger was not a forceful Chief Justice like his predecessor or successor. Instead his Court was characterised as a Court of consolidation or moderation caught between the liberal judicial activism of Warren and conservative judicial (strict) constructionism of Chief Justice William Rehnquist. The landmark decisions of the Burger Court – like the eras before and after – provided a further snapshot of wider ideological circumstances and trends: the Burger Court was mirrored politically in the fallout from the Vietnam War, Watergate and the ‘imperilled presidencies’ of Presidents Ford and Carter.

When Rehnquist was appointed Chief Justice of the Supreme Court in 1986, he was as an overtly political conservative justice of the Supreme Court much like President Reagan, the man who appointed him. As law clerk for Justice Robert H. Jackson in 1952, he argued that the majority opinion in the controversial Plessy v. Ferguson (1896) – upholding segregation was ‘right and should be reaffirmed’. Even though Rehnquist’s legacy was unquestionably more ambiguous than Warren’s insofar as the Rehnquist Court (1986-2004) restrained federal government’s powers in US v. Lopez (1995) by limiting the Commerce Clause; eroded, albeit not overturned, Roe in Webster v. Reproduction Health Service (1989) and Casey v. Planned Parenthood (1992); and the blurring of state-church boundaries in Van Orden v. Perry (2005).
Others have thought that the Rehnquist Court was a Court of moderation because Rehnquist, even though Chief Justice, was not the opinion-former or leader. Nancy Maveety argues that the Rehnquist was the ‘Queen’s Court’ or the ‘O’Connor Court’. Sandra Day O’Connor, another appointment of President Reagan and the first female justice, went to the Supreme Court in 1981. O’ Connor’s background had much for Reaganite Republicans to approve of, having had deep involvement in Republican politics with ties to Barry Goldwater’s doomed run in 1964, and was a co-state chair for Nixon in 1972. Additionally, she had a close personal relationship – predating her appointment and tenure of the Supreme Court – with Rehnquist. O’ Connor’s ‘ambiguous’ position on abortion was a foretaste of wider opinions O’ Connor submitted in cases to come. The conclusion of John A. Jenkins is that Rehnquist’s ‘dogma trumped leadership’; one reason why Rehnquist – quite unlike chief justices John Marshall, Charles Hughes and Earl Warren – never bequeathed a body of law or opinions that define his tenure of the Court. Rehnquist is therefore seen to have a limited judicio-political legacy because of O’Connor’s decisional dexterity and ability to make concurrence decisions, and/or his inability to place ‘leadership’ ahead of ‘dogma’. Nevertheless, Reagan and President George H. W. Bush managed to put a total five members on the Supreme Court and despite conservative disappointments – O’Connor, Associate Justice Anthony Kennedy (1988) and Associate Justice David Souter (1990) – the Rehnquist Court was decidedly more conservative (either of an originalist, strict constructionist or judicially-restrained bent) than the two preceding courts.

The Roberts Court: A Cautious Conservatism?

President G. W. Bush (2001-2009) was determined to appoint ‘strict constructionists’ – the close or narrow reading and interpretation of a statute or written document – as Supreme Court Justices in the mold of Justices Rehnquist, Scalia and Thomas (even though the latter two consider themselves as ‘textualists’ and ‘originalists’). Having served in the Republican administrations of Reagan and the two Bush presidencies, John Roberts was appointed as Chief Justice in 2005 at first to replace the retiring O’Connor but eventually to replace the deceased Rehnquist.
The Roberts Court has the potential to be one of the most fascinating eras in the Supreme Court since Marshall. First, the election of President Obama and the rise of the Tea Party movement with its anti-taxation, anti-regulation and anti-abortion biases has been reflected in the landmark decisions of the Court. Second, the judicio-philosophical composition of the Court is especially interesting: the living constitutionalism of Associate Justice Ruth Bader Ginsburg to the purposivism of Associate Justice Stephen Breyer to the pragmatic conservatism of Associate Justice Anthony Kennedy to the originalism of Associate Justices Antonin Scalia and Clarence Thomas. Third, the addition of two Obama appointments – Elena Kagan and Sonia Sotomayor – to the Supreme Court injects an unpredictability to proceedings. Lastly, it seems as if, in a short eight years, the Roberts Court has made landmark decisions on a lot of big issues.
Unlike other previous periods where the Supreme Court reflected the prevailing mood of the political composition of the country, the Roberts Court has reflected the increasing political division in Washington and in the United States more broadly. Jeffrey Toobin’s book, The Oath: Obama White House and the Supreme Court, captures the tension between Obama’s dispositional conservatism and the Roberts Court insofar as the former has, to an extent, practiced incrementalism and a politics of compromise, and the Roberts Court has dismantled pillars of the New Deal settlement. If one looks however, cursorily, at the landmark decisions of the Roberts Court, a more sober judgement is reached: the mixed judicio-philosophical outcomes of case hearings is a mirroring of the divided politics in the Bush-Obama years.

The conservative landmark decisions are numerous. In Gonzales v. Carhart (2007) the Court narrowly in a 5-4 decision upheld the Partial-Birth Abortion Ban Act of 2003, which amounted to a further erosion of Roe. In the controversial Citizens United v. Federal Election Commission (2010) the Court, again with a narrow 5-4 opinion, decided that the First Amendment prohibited the government from restricting political independent expenses by corporations, association or trade unions. This decision lead to the escalation of the politically-murky Super PACs in the 2012 Presidential Election. In Shelby County v. Holder (2013) the Court in another 5-4 decision struck down major provisions of the Voting Rights Act of 1965. However, contra Toobin’s thesis, the Court has made what look like liberal or progressive decisions. In Arizona v. US (2012) the Supreme Court struck down parts of Arizona’s immigration policy (Jan Brewer, Arizona’s ultra-conservative Republican Governor, signed into law the ‘Support Our Law Enforcement and Safe Neighbourhoods Act’), which made it a state crime for an illegal immigrant to be in Arizona without carrying registration documents required by federal law, authorizes state and local law enforcement of federal immigration laws. Unexpectedly, the Supreme Court upheld most of the provisions in ‘Obamacare’ in National Federation of Independent Business v. Sebelius (2012) with Roberts being the swing vote. Most recently, in US v. Windsor (2013), the Defence of the Marriage Act 1996 was deemed unconstitutional as its definition of ‘marriage’ and ‘spouse’ restricting it to heterosexual unions violated the ‘due process clause’ of the Fifth Amendment.

In 2014, the relationship between Obama and the Roberts Court takes another turn as the latter questions the boundaries of the executive power of the former. The Supreme Court will consider whether President Obama violated the Constitution during his first term. It refers specifically to a trio of recess appointments made by the President to the National Labor Relations Board that were deemed unconstitutional by the lower courts. Presidents, for decades, have used the recess (when Congress is on holiday) appointment powers, to install judges and top federal vacancies that ordinarily would be subject to confirmation proceedings. Given the history of the decision-making of the Roberts Court, the outcome is largely unknowable. However, either way, it will have implications: if the Supreme Court decide the appointment process is constitutional, commentators will decry executive over-reach, and if they overturn appointment privileges, the Court will be accused of legislating from the bench. Either way, the relationship between the executive and the Supreme Court continues to fascinate spectators, especially political spectators.