No Virginia, the Supreme Court Isn’t Making Judicial War on the Obama Administration

by Pejman Yousefzadeh on June 25, 2012

While waiting for the Supreme Court’s ruling on the constitutionality of Obamacare, many of the law’s proponents are passing the time attacking the Court for supposedly making judicial war on the Obama administration. In this article, Robert Barnes reveals that the assumptions underlying the attacks on the Court are nonsensical:

. . . whatever the reasons, the [Obama administration's Supreme Court] losses so far cannot be blamed on the conflict between an increasingly conservative court and a progressive administration. For instance, the authors of the Indian cases that went against the government last week were Justices Sonia Sotomayor and Elena Kagan, Obama’s choices for the court.

At least so far, 5-to-4 decisions that have divided the court along ideological lines have split fairly evenly between wins for liberals and for conservatives. And there has been a string of high-profile losses in which the government has failed to win the vote of a single justice — liberal or conservative.

The court was unanimous in rejecting the government’s arguments that federal discrimination laws protect employees of religious organizations who perform some duties central to the group’s faith.

The justices in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC for the first time recognized a “ministerial exception” to workplace discrimination laws. They dismissed the government’s view that the fired employee’s claim should be viewed as if she worked for a labor union or social club protected by the First Amendment’s guarantee of free association.

“We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers,” Roberts wrote.

In United States v. Jones, the government argued that it did not need a warrant to attach a Global Positioning System device to a suspected drug dealer’s car and monitor his movements for a month. The court again disagreed unanimously, although the justices split on whether Antoine Jones’s constitutional rights were violated when the device was put on his car or whether the government’s surveillance compromised his privacy rights.

And in Sackett v. EPA, the court rejected the argument that property owners accused of violating the Clean Water Act do not have the right to quickly challenge those allegations in court.

It is a case in which the administration was defending a decades-old EPA enforcement technique upheld by lower courts. It was not indicative of any activism by the Obama environmental regime; Mike and Chantell Sackett’s plan to build an Idaho lake house was stopped when George W. Bush was president.

While the Supreme Court passed up an earlier chance to consider the same issues in an appeal from General Electric, it took the case of the Sacketts.

“I wonder if the case had been involving a large corporation if the result would have been 9-0,” Paul D. Clement, a former solicitor general in the Bush administration, told reporters at a Chamber of Commerce briefing last week.

Now, are all of these facts going to prevent port-side critics of the Court from continuing to spread the canard that the Court is uniformly ideologically hostile to the Obama administration, and that the conservative justices are nothing more than the shock troops of the VRWC?

Well, probably not. But if critics of the Court don’t take the facts into account when making their claims, then we know that they are ignorant of the facts at best, and intentionally deceptive in making their claims at worst. And we shouldn’t be shy about saying as much.

Previous post:

Next post: