In June 2012, in a 5-4 decision, the United States Supreme Court upheld one of the most important acts of Congress in the last half century, the Patient Protection and Affordable Care Act (“Obamacare”). The decision, in which Chief Justice John Roberts joined four more liberal colleagues in invoking Congress’s taxing authority to uphold a contested provision of the Obamacare legislation, was significant not only in allowing a major change in the organization of American health care to go ahead but also in its potential impact on future legal rulings and on the status of the Supreme Court itself.

Judicial review has been controversial in the United States through much of the 210-year history of its exercise. This has rarely been truer than in the present era when appointments to the federal courts have been intensely contested. As a result of the political nature of U.S. judicial appointments, in which the president nominates with the Senate’s “advice and consent,” the U.S. Supreme Court remains fairly well aligned with the voting public. The eminent political scientist Robert Dahl wrote in 1957 that the Court functions best not as a defender of minority rights but as a legitimizer of majority coalitions and the norms of democratic governance.

American history shows two major exceptions to this alignment. The so called “Laissez Faire” Court (1895–1937) blocked legislative reforms spawned by the Progressive movement including two federal child labour laws, the progressive income tax and the first federal antitrust statute. Later, the Court struck down 12 congressional acts, including the Agricultural Adjustment Act and the National Industrial Recovery Act, which were part of Franklin Roosevelt’s New Deal effort to resuscitate the economy.

This period of conservative activism, which ended in 1937, was followed by a period of liberal activism that reached its peak in the 1960s and early 1970s under Chief Justice Earl Warren and in the early part of the term of his successor, Warren Burger. The Warren and early Burger courts desegregated the nation’s schools, extended most of the federal Bill of Rights to the states, upgraded the rights of the accused and prisoners, reformed the U.S. electoral system through the one-man-one-vote rule, outlawed official prayer in the schools, recognized rights to contraception and abortion, protected the rights of women and, for a time, abolished the death penalty, all in advance of majority opinion of the day.

According to Dahl, periods of short-term judicial nonalignment tend to be self-correcting. Excessive judicial activism in the 1930s led to Roosevelt’s threat to pack the Court by expanding its membership from nine to 15 justices. Although the Court Reform Act failed in Congress, a Court majority led by Chief Justice Charles Evans Hughes decided in 1937 to support controversial New Deal legislation and avoid a constitutional crisis. The event became known as “the switch in time that saved nine.” Later, Roosevelt was able to name nine consecutive justices through normal attrition, and the Court upheld not only the New Deal but also new legislation that expanded government powers to regulate the economy and social conditions.

Similarly, the judicial activism of the 1960s and 1970s on behalf of individual rights spawned ten consecutive Republican appointments by Presidents Nixon, Ford, Reagan and the first Bush between 1969 and 1993. (Jimmy Carter, the lone Democratic president in this period, had no opportunity to name a Supreme Court justice in his single term.) Presidents Nixon, Reagan and Bush had explicitly campaigned against the judicial activism of the Warren and early Burger courts and promised to name justices less inclined to “legislate from the bench.”

In subsequent administrations, Presidents Clinton and Obama have named a total of four justices to the Court and George W. Bush has named two. Since U.S. presidents almost invariably name justices of their own party, the current Court is now divided between five Republicans and four Democrats. Despite a Republican numerical majority on the Court since 1971, there has been no wholesale repudiation of the liberal legacies of earlier courts, to the frustration of some Republicans.

The much criticized Mapp v. Ohio (1964), which excluded illegally seized evidence from criminal trials, and Miranda v. Arizona (1966), which warned suspects of their rights to silence and an attorney, have been modified but reaffirmed in subsequent decisions, as have equally controversial decisions regarding abortion (Roe v. Wade, 1973) and affirmative action (Regents of the University of California v. Bakke, 1978). And although the Court has backed away from its near-abolition of the death penalty in Furman v. Georgia (1972), it has narrowed the crimes to which and the individuals to whom it can be applied. Only murder is now a capital crime and neither juveniles (under 18) nor the mentally handicapped are subject to the penalty.

Also, the powers of Congress and the state legislative powers that expanded under Franklin Roosevelt and subsequent administrations have not been restricted by the Republican dominated post-Warren courts. In fact, only two congressional acts passed under the commerce power have been struck down since 1936, primarily because each had little to do with commerce: possession of guns in a school zone (Lopez v. U.S., 1992) and violence against women (U.S. v. Morrison, 2000). In 2005, in Gonzales v. Raich, the Court went back to an earlier precedent (Wickard v. Filburn, 1942) to uphold federal regulation of the private cultivation and consumption of medical marijuana, even though it was not destined for commerce.

Jeffrey Toobin’s analysis

George W. Bush’s appointments of Chief Justice John Roberts in 2005 and Associate Justice Samuel Alito in 2006 reexcited hopes and fears of a radical turn to the right, just as the election of Barack Obama in 2008 raised similar emotions about the prospect of a radical turn to the left. One important recent analysis of the Roberts Court is New Yorker staff writer Jeffrey Toobin’s The Oath: the Obama White House and the Supreme Court.1 Toobin writes that Roberts “towers above colleagues, conservative and liberal alike, in savvy, intelligence and understanding of the place of the Supreme Court in American life,” and Alito, who replaced the more moderate Republican Sandra Day O’Connor, better represents the ambitions of the Republican right which successfully pushed his nomination and confirmation. The Roberts Court, in Toobin’s view, is pressing for a repudiation not only of the Warren Court’s rights revolution but also of the Roosevelt Court’s expansion of Congress’s authority under the commerce clause.

In this sense, Toobin sees Roberts as the radical committed to change and Obama as the conservative defender of the status quo. Roberts, however, describes his own goal more modestly as a less fractious and fractured Court with cases decided on narrower grounds, consistent with a policy of judicial restraint. Toobin is critical of Obama for not paying enough attention to the courts, for failing in some instances even to nominate judges to openings on the lower federal courts and for preferring judicial moderates less likely to seek change through judicial fiat. Since there were no specific liberal judicial objectives on Obama’s agenda, he was free to name justices to strengthen his political base with Hispanics and women through the appointments of Sonia Sotomayor, the first Hispanic justice, and Elena Kagan, his former Solicitor General (though in fact, with these appointments, he did not have to choose between affirmative action and judicial liberalism).

Toobin depicts Obama as committed to reform through lawmaking at a time when many other liberals despair of it. This commitment was evident when, against advice, Obama sought and secured a revolution in the U.S. health care system through the passage of the Affordable Care Act. Similarly, when the Roberts Court in 2007 turned away an equal pay claim by Lilly Ledbetter on the technical grounds that her suit had not been “timely” as required by statute, Obama, as a senator and later as president, helped secure legislation adopted in 2009 to reverse the decision. His victory mobilized support for his reelection, especially when Ledbetter herself addressed the 2012 Democratic National convention, castigating a Republican “war on women.”

Obama’s reelection, more than Republican revisionism, is likely to define the near future of the Court, as the Democratic President may have opportunities to name more justices to the Court. Since there is no mandatory retirement age for federal judges, aging justices often time their retirements to ensure that their replacements are nominated while a president of their party is in office. According to Toobin, Justice Ruth Bader Ginsburg, near 80 and twice ill with cancer, is considering such a strategic retirement while Obama is still president.2 Earlier, liberal Harvard Law Professor Randall Kennedy had urged the strategic retirements of both Ginsburg and fellow Democrat Stephen Breyer (age 75) so that Obama could name their successors before the end of his first and perhaps last term.3 Now the justices have longer to plan their exits..

Though Obama and Clinton were not as focused on ideological correctness as were Republicans, their appointees have proven more ideologically consistent and cohesive as a voting bloc than their more carefully vetted Republican colleagues. Moderate Republicans Sandra Day O’Connor, David Souter and John Paul Stevens (all retired), and the sometimes immoderate and unpredictable Anthony Kennedy, have often broken ranks and thwarted a Republican agenda, most notably in abortion and affirmative action cases (Planned Parenthood v. Casey, 1992 and Michigan v. Grutter, 2003).

Toobin sees a serious threat to liberal precedent in the doctrine of originalism espoused most fervently by Republicans Antonin Scalia and Clarence Thomas. Originalism is generally understood to consist of faithfulness to the text of the Constitution and to the intent of the framers of its provisions and also to the exercise of judicial restraint in overruling legislative judgements when neither text nor intent is conclusive.

Originalism is easy to criticize on its own terms: if the framers themselves had believed in it, they would not have left so much in the original document open to later interpretation. Many of the Constitution’s most important provisions – due process, equal protection, commerce among the states, republican form of government – lack specificity. However, for opponents of originalism, constructing a compelling alternative is difficult since textualism is practically synonymous with the public’s understanding of the rule of law. If not the text, what then should guide judges? For Toobin, the answer is precedent.

Toobin lauds Justice Souter’s defence of precedent as a bulwark against originalist revisionism. But adherence to precedent cannot be an end in itself. As Toobin recognizes, the Constitution is and should be a living document, and the reconsideration, revision and occasional outright rejection of precedent is an essential part of the process for Republicans as well as Democrats. Holding precedent sacrosanct is as untenable as holding the original document sacrosanct.

Much of The Oath focuses on conservative gains on the Roberts Court. These include chapters on the Second Amendment “right to keep and bear arms,” now recognized as a personal right in both federal and state jurisdictions; the withdrawal of constitutional protection for some abortion procedures even when maternal health might warrant them; and the striking down, on free speech grounds, of long-established federal and state laws prohibiting corporate and union spending on political campaigns. On the campaign spending issue, Democrats, who outspent Republicans in the 2012 presidential race, feared that unlimited independent corporate spending would be heavily skewed toward Republican candidates and causes – though just how this played out in the 2012 election is still being studied.

The Obamacare decision

Toobin concludes with three chapters recounting and analyzing a dramatic instance of judicial restraint by the Chief Justice: the Obamacare decision. The most controversial aspect of the Affordable Care and Patient Protection Act has been the individual mandate, which requires nearly 20 million uninsured adults to purchase health insurance or pay a tax penalty. Their involuntary inclusion was viewed as essential to making health insurance affordable for all. With Justice Roberts writing a majority opinion joined by four Democrats, the Court upheld the act on grounds that the individual mandate could be authorized under Congress’s taxing authority.

Although Roberts’s Republican colleagues dissented from his support of the taxing authority in this case, they joined him in ruling that the mandate was not authorized under Congress’s powers to regulate commerce. Congress could regulate existing commerce, the Court concluded, but could not force individuals to participate in commerce. The Democratic justices vehemently dissented from this aspect of the ruling, which upheld the law while putting new limits on Congress’s commerce powers.

Finally, in a 7-2 decision, the Court declared unconstitutional one provision of the law. They ruled that requiring states, under threat of losing up to 100 per cent of their existing funding, to insure another 20 million poor and disabled adults under Medicaid was so coercive as to exceed Congress’s powers under the spending clause. Twenty-six states, all headed by Republican governors, had filed suit protesting the law. The question is how many will refuse the new funding now that they are legally free to do so. The best guess is that most will take the money and sign on to the program. Florida, which filed the original suit challenging Medicaid expansion, has now asked the federal government to fund private insurance for Floridians newly eligible under Medicaid expansion.

The legal brilliance of Roberts’s opinion was to uphold the law while further restricting Congress’s powers under the commerce and spending clauses. Moreover, by upholding major parts of the law, Roberts also avoided making the Court itself an issue in the 2012 presidential campaign. For Toobin, there was a long-range strategy underlying this decision: in protecting the Court at the expense of the immediate Republican agenda, Roberts provided political cover for more conservative decisions to come: “As a man in robust middle age, with life tenure, Roberts has the luxury of playing a long game, and he is.” Outcomes in ongoing cases will provide additional insight into the character of the Roberts Court.

Coming up: Same-sex marriage, affirmative action and voting rights

A year after the Obamacare decision, the Court is in the process of deciding important cases on same-sex marriage (Hollingsworth v. Perry and U.S. v. Windsor), affirmative action in higher education (Fisher v. Texas), and the constitutionality of section 5 of the Voting Rights Act of 1965 (Shelby County, Alabama v. Holder).

In Windsor, the Obama administration is now refusing to defend the constitutionality of the federal Defense of Marriage Act (DOMA), which defines marriage as a union of one man and one woman and denies federal benefits to same-sex couples even when they are legally married (in the nine states and the District of Columbia that now allow such marriage). At oral argument, five justices expressed reservations about the constitutionality of DOMA. Justice Kennedy thinks the act infringes on near-exclusive state sovereignty to regulate marriage. The four liberal Democrats seem inclined to void it on Fifth Amendment equal protection grounds. If the five are able to agree only on Justice Kennedy’s states rights reservation, the ruling would make federal benefits available to same-sex couples in states already embracing same-sex marriage. Conversely, it would bolster claims in California and elsewhere that states should remain free to prohibit as well as to approve same-sex marriages. The Court could also rule that failure of the Obama administration to defend the law means that matter is moot as the parties to the case are agreed that DOMA is unconstitutional – no conflict, no case.

In the more unlikely event that the Court rules DOMA unconstitutional on Fifth Amendment grounds, that ruling would likely accompany a similar ruling in Hollingsworth v. Perry that state laws banning same-sex marriage violate the Fourteenth Amendment’s equal protection guarantee, which would make same-sex marriage a constitutional right throughout the United States. At issue in Hollingsworth v. Perry is a state constitutional amendment that came into effect in 2008 when California voters approved Proposition 8, which defined marriage as being between one man and one woman. The proposition overrode a California Supreme Court decision that same-sex couples could marry. Because state constitutional restrictions are much harder to erase through ordinary political processes than are statutory restrictions, many states have recently constitutionalized their same-sex marriage bans to better fend off legal and political challenges.

At oral argument in Hollingsworth, several justices, particularly the pivotal Justice Kennedy, questioned deciding the case at all. The possibility that Justice Kennedy, despite these misgivings, will allow a liberal activist outcome to be realized cannot be ruled out, since he has already authored two majority opinions protective of gays and lesbians (Romer v Evans, 1996, and Lawrence v. Texas, 2003). Most likely, however, is that the case will be dismissed without a decision on the merits. The effect would be to uphold the U.S. Court of Appeals decision striking down Proposition 8, but with no effect on other states that ban marriage by same-sex couples. A definitive ruling on the merits would have to await a future case.

The endorsement of same-sex marriage by the Obama administration and many other societal groups is important because U.S. Supreme Court justices are reluctant to recognize new rights until they can identify a societal consensus supporting them. State laws are considered the best evidence of such a consensus. Despite apparently evolving public opinion, that 41 state laws still define marriage as between one man and one woman is strong evidence that there is no societal consensus for recognition of same-sex unions. For this reason, some LGBT advocates argue that these cases are prematurely before the Supreme Court and delay would better serve their purposes. Battles must first be waged and won in state legislatures, in state courts and in the court of public opinion.

Conservative but no less activist outcomes are a possibility in the affirmative action and voting rights cases. In Fisher v. Texas, already argued, the Court will likely rule that Texas’s use of affirmative action in higher education offends the federal Constitution. What is less clear is whether it will do so on narrow or broad grounds. The narrow ground is that considerations of race are not necessary to achieve diversity in higher education at the University of Texas because other, race-blind, criteria have already achieved much the same diversity. A broad ruling would overrule precedent and hold that race-based admissions cannot be a factor in any U.S. public university because the achievement of diversity is not a compelling government interest.

In the voting rights case, Shelby County Alabama v. Holder, the Court could invalidate section 5 of the 1965 Voting Rights Act, one of the most successful civil rights laws in U.S. history. The act is responsible for enfranchising African Americans across the South by requiring nine states of the former Confederacy to preclear electoral changes with the U.S. Department of Justice. Shelby County regards preclearance as no longer necessary because the South has been so racially and politically transformed by the 1965 act that the 2006 renewal of the act by Congress was an unnecessary denial of state sovereignty and states’ rights to equal treatment under the Constitution.

Oral argument before the justices indicates that the Court is again divided, with four Democrats clearly supporting Congress’s near-unanimous 2006 renewal of the law and four Republicans, including the Chief Justice, opposed. Again, Justice Kennedy’s vote will likely determine the result, as only he seems undecided. If the Court strikes down section 5, it will be accused of conservative activism, but the decision could be defended as a necessary update based on a new set of facts that Congress should have considered in 2006. For example, African Americans now have higher rates of voter registration and voter turnout in Alabama than in Massachusetts!

The constitutional revolution

This brings us back to the larger question about the Court: is radical Republican revisionism ascendant? We think not.

Given that the potential revolution contained in post–Civil War amendments abolishing slavery and establishing political and civil rights for freed slaves failed when these rights were not enforced until a century later, there has been only one genuine constitutional revolution since the drafting and ratification of the Constitution in 1787–88. This revolution, leading to both expanded government and reinforced rights, was the consequence of a period of national emergency through the Great Depression of the 1930s and the Second World War. By then, a transformed national economy with international outreach necessitated an overhaul of federal regulatory capabilities, while the emergence of the United States as a dominant geopolitical force necessitated the acquiescence of both Congress and the Supreme Court in an “imperial presidency.”

As the Second World War ended and the Cold War began, the rights consciousness spurred by the ideological struggles against Fascism and Communism culminated in the revolution of the Warren Court. However, seeds of the Warren Court’s activism were already sown in a 1938 decision, Carolene Products v. U.S. In a famous footnote, soon-to-be Chief Justice Harlan Fiske Stone mused that ordinary social and economic legislation should be presumed constitutional, but legislation which impinged on the Bill of Rights, which disadvantaged “discreet and insular minorities” or which interfered with the ordinary workings of the political process for the redress of grievance should be presumed unconstitutional.

Stone’s understanding of the Court’s proper role became a template for the jurisprudence of the Roosevelt and Warren courts and has not been successfully disavowed by any subsequent court. The doctrine of originalism is intended to overthrow this constitutional order, but it is not succeeding. Only Justice Thomas subscribes to all facets of originalist doctrine and disdains precedent. Justice Scalia embraces textualism but regards the intent of the framers as irrelevant, and he is often a respecter of precedent. Conservatives on the Roberts Court now win more cases not because there is a new ideological consensus but because there are more of them. With a Democrat in the White House, that could change. That we still cannot confidently predict the outcome of this term’s most important cases shows that the Court remains as divided as the rest of the country. However, the Court can and does act.

Some political scientists believe that the American Constitution is antiquated and a source of the country’s present crisis in government. They think the United States is worshipfully operating under 18th-century rules – but it is not. It is operating under a recent makeover that dates to the middle of the 20th century and continues to be modified every year through the case law of the Supreme Court and the inventiveness of elected officials. As Toobin puts it in his conclusion, “Invariably, inevitably, the Constitution lives.”

On the other hand, a fundamental consideration of the founding generation, that the tyranny of the majority must be avoided in a republican form of government, is still relevant. This means that sometimes the government cannot act even when action seems necessary. As President Obama explained on March 1, 2013, after failing to avoid an unwise sequestration of government funding, “I am not a dictator, I am the President.” That Americans have managed to govern themselves without a dictator for more than 200 years is an understandable source of pride and of reluctance to change the constitutional rules underlying America’s expanding but often challenging democracy.


1 New York: Doubleday, 2012.

2 New Yorker, March 11, 2013.

3 New Republic, May, 2011.

Obamacare supreme court photo courtesy Tabitha Kaylee Hawk/Flickr