National Law Journal correspondent Marcia Coyle chronicles the Supreme Court battles that are reshaping American law and policy in The Roberts Court: The Struggle for the Constitution.
You focus on controversial recent decisions regarding gun rights, campaign finance, school desegregation, and Obamacare. Is the Roberts Court making a major impact in these areas?
Definitely. The Second Amendment ruling, District of Columbia v. Heller, is being used around the country to challenge state and local gun ordinances. The campaign finance decision Citizens United was a key building block for superpacs in the last election. The Court’s ruling in the Seattle and Louisville school case was certainly felt by school districts that are struggling to maintain racial diversity. And the health care ruling will have major effects on the Commerce Clause, which Congress often relies on when it legislates. In these areas the Court has had a very strong impact, and will continue to.
Chief Justice John Roberts has voiced a philosophy of “judicial minimalism”. Are we seeing that?
In some areas, but not others. I don’t think Citizens United or the school cases are examples of judicial minimalism. The Roberts Court seems to be heading quickly towards deregulating campaign finance, and the Chief Justice has made it clear that he looks at racial classifications with suspicion and seems to be moving towards eliminating them, be it in college affirmative action or even voting rights. There are cases where Roberts has not moved as far or fast as Justices Scalia and Thomas would have him. Still, it’s a very confident, conservative Court.
Many of the cases you explore were concocted by libertarian lawyers to get laws they oppose overturned. Is the Court lending itself as a vehicle for legislating from the bench?
It was coincidental that they all had smart conservative lawyers pushing them, but in the book I am interested in the stories of how these cases were put together. I don’t think the Court is “lending itself” to them, but it is what it is: there’s a conservative majority that has an interest. That was so with the Seattle and Louisville school cases—there was no conflict in the lower courts, nobody was really talking about the issue, but the Justices had a strong interest and the cases were there.
Is the Supreme Court a kind of politics by other means?
I don’t believe that at all. This Court is not always predictable politically and ideologically. On the Obamacare decision last term, not only did you have Roberts joining the four liberals on the issue of the individual mandate, you had liberal Justices Breyer and Kagan joining the conservatives on the Medicaid issue. Basically, you have to read the opinions they write: it’s the Justices’ job to lay it out there; it’s up to us to believe it or not. If we stop believing that they are basing their decisions on principle, then the Court is in serious trouble.