Volume 23, Number 2, November 2013

US politics

The US Supreme Court: bastion of conservatism or beacon of liberalism?

Simon Lemieux

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Unlike its counterpart in the UK, the US Supreme Court is inevitably involved in politics by virtue of the cases that come before it. All the ‘hot potatoes’ of US politics have come before it at some time or another — slavery, civil rights, gun laws, abortion, gay rights,and even the outcome of the 2000 presidential election. This therefore begs the question whether the current court is essentially conservative or liberal. As the rest of this article will attempt to show, the matter is not as clear-cut as one might think.

Before we analyse a few of the latest cases to come before it, most notably in the 2012–13 term, we should remember two things. First, the nine justicesare not party political in the conventional sense. We often use the terms liberal and conservative to describe them but they do not always stick neatly or conveniently to this labelling. Second, we need to be careful with the terminology of liberal or progressive. In one sense, being supportive of gay rights would indicate a liberal or progressive position. Yet if a justice is simply allowing individual states to make the choice over whether or not to permit gay marriage in their territory, then that could be interpreted as upholding a traditional conservative position with regard to states’ rights.

Good news for conservatives

The Supreme Court has now completed its opinions and verdicts for 2012–13. Which shade of political opinion is basking in satisfaction and which is licking its wounds? There are causes for celebration and despair for both factions. For those of a right wing disposition, the following verdicts will have gladdened the hearts.

  • First,Shelby County v Holder. This struck down Section 5 of the 1965 Voting Rights Act, which required certain states/districts with a poor record for promoting racial equality to submit any planned changes to their election arrangements to federal government for prior approval. This procedure is known as ‘pre-clearance’ and applied to nine states (all bar Alaska in the old Confederacy) and parts of six other states. The decision on a 5–4 majority was bitterly condemned by many in the civil rights movement, and by President Obama himself.
  • Conservatives can also take heart from the verdict in Fisher v University of Texas at Austin,which dealt with affirmative action. The case involved a white plaintiff who felt discriminated against due to the university’s policies on racial diversity. She argued that minority candidates had secured places although their test scores were lower than hers. The court decided by a 7–1 majority (Justice Kagan recused herself from the case) to remand the case back to a lower court, which is essentially telling that court to look again at the case and reconsider its verdict. This it should be noted, is not quite the same as overturning an existing law or previous verdict by the Supreme Court, so thus represents only a partial success for opponents of affirmative action.
  • When it comes to the rights of criminal suspects, the ruling in Maryland v King can also be seem as a victory for those on the right, as it upheld the right of the authorities to take and use DNA samples without a specific reason. An interesting point to note here though is that although it was a 5–4 verdict, the normally ‘liberal’ Justice Breyer was on the majority side, while the ‘conservative’ Scalia was in the minority.
  • Supporters of civil liberties were also dismayed by the ruling in Clapper v Amnesty International,which denied a challenge to the legality of a clause in a federal law of 2008 that extended the surveillance power of the National Security Agency.
  • InSalinas v Texas, the court upheld the use of an accused remaining silent to be cited as evidence in a trial, i.e. one can still refuse to answer potentially incriminating questions (the Fifth Amendment, also known as Miranda rights) but this fact can be used as evidence against the defendant.
  • A final cause for conservative satisfaction and liberal dismay was in American Express Co v Italian Colors Restaurant, which effectively made it more difficult for small businesses to take class actions against big corporations. As seen with the Citizens United case back in 2010, the Supreme Court has of late been a good friend of the rich and powerful in the corporate world.

Liberal progress

So is there anything for liberals to cheer about? The answer is undoubtedly yes. Probably two of the biggest domestic issues where Obama is likely to have left a legacy are gay rights and Obamacare. In both of these, the Supreme Court while not delivering a fully liberal response has not proved to be the force of reaction and opposition many had feared.

  • At the end of the its last session in June 2012, the court’s verdict in the Sibelius case found that the Affordable Health Care for America Act was not unconstitutional even if the court did find that states could not be compelled to accept a federally funded expansion of Medicare which was part of the Obamacare package. By June 2013, 25 states plus DC, mostly Democrat leaning states, had opted in. Interestingly, although this was another classic 5–4 verdict, it was Chief Justice Roberts, normally counted as a conservative, who tipped the balance. This again reminds us of the tricky business of labelling the justices too rigidly as either conservative or liberal.
  • The final and perhaps most notable topic to reflect on is that of gay rights, more specifically gay marriage. Here, the 2012–13 session saw two rulings that will probably fall into the ‘landmark case’ category along with classic verdicts such as Roe vWade and Brown vTopeka. The two cases were firstly United States v Windsor, which dealt with the constitutionality of the 1996 Defense of Marriage Act (DOMA). The second was Hollingsworth vParry, which dealt with Proposition 8, a citizens’ initiative measure in California which banned gay marriage and which was then ruled unconstitutional by a federal appeal court. In both cases, the gay rights cause was strengthened. DOMA was effectively ruled unconstitutional, and Prop 8 was also overturned as the decision of the Ninth Circuit Court of Appeals was upheld.

A limited victory for gay rights?

It is important to stress what has and has not changed. Firstly gay Americans have not acquired a universal right to get married — by declaring DOMA unconstitutional, the Supreme Court has effectively said that federal government cannot prohibit or discriminate against gay marriage in those states where such measures have been passed, which so far is 13 states plus DC. This decision will probably lead though to an unstoppable cultural and legislative momentum. We may be some while off seeing federal law requiring all states to permit gay marriage but equally we can be sure that gay marriage is here to stay in some parts of the USA.

It is intriguing to consider how the justices lined up in each case. Both were classic 5–4 verdicts but it was the usual ‘swing’ Justice Kennedy who tipped the balance in the Windsor case, but Roberts who swung it in the Hollingsworth case. This again reinforces the need for caution in labelling justices too rigidly.

Finally one other point to note — the actual issue in the Windsor case concerned the ability of a same-sex couple (who were married in Canada) to leave money to the other partner free of estate tax, as is the case for heterosexual couples. DOMA forbade such a tax exemption and it was this aspect that was being directly challenged in the courts. So even here, money featured in US politics.

Conclusion

So to sum up, is the current Supreme Court conservative or liberal? Without wishing to sound too flippant, one can argue that the verdicts of 2012–13 in particular show that it can and does ‘swing both ways’, being relatively progressive in some areas while upsetting liberals in others. In a USA where parties and political pundits at any rate are increasingly partisan and divided into reds and blues, perhaps the Supreme Court is wise to make friends and enemies on both sides.

Simon Lemieux is head of history and politics at The Portsmouth Grammar School and is a frequent contributor topolitics reviewonline

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