Saturday, December 21, 2019

The Top 5 Supreme Court Cases of the Decade

By Eric Segall

As we leave this decade, I thought it might be interesting to look back over the last ten years and highlight the Supreme Court's five (okay six) most important constitutional law cases. My criteria are my own subjective assessments concerning the decisions' impact on the people of the United States and the development or reversal of constitutional law doctrine.

Here they are in rough order of most to least important.

1) United States v. Windsor & Obergefell v. Hodges. These two 5-4 decisions, with Justice Kennedy joining the liberals and four conservatives in dissent, dramatically changed the lives of millions of gays and lesbians who could now become officially married and obtain all the benefits our society provides people who are married. Not only did these decisions mandate legal equality for a traditionally disfavored minority, but it showed gays and lesbians in an honest and true light to many Americans whose bigotry may have been fostered by ignorance and misunderstandings. As the Court wrote in Obergefell:

Same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

These two decisions likely would not have come down when they did if Justice Kennedy did not grow up being mentored very closely by a closeted gay man. Kennedy observed first-hand the indignities for people who were forced by an unjust society to live in the closet. There have been four pro-gay rights Supreme Court cases in American history, and Justice Kennedy authored all of them. Sometimes, that's just how constitutional law works.

2) NFIB v. Sebelius: This case was dramatically important both for the fate of Obamacare and for constitutional law doctrine. After an all-out assault by conservative and libertarian groups on President Obama's signature legislation, which, among many other things, was designed to help people with preexisting medical conditions obtain affordable health insurance and enlarge the Medicaid program for America's poorest people, the Supreme Court by a vote of 5-4 (with Chief Justice Roberts joining the liberals for the first time in his career in a major case), upheld the law in most part while striking down the part that made accepting the Medicaid expansion mandatory for states in order for them to receive all their Medicaid grants. Along the way, the Court turned the mandate to buy health insurance into a tax; changed the prior law regarding Congress' powers to regulate commerce among the states in a way that could still have major implications for constitutional doctrine; and struck down a federal spending law as too coercive for the first time in American history (prior to the 1940's the Court had limited Congress' spending powers but not on the grounds that the condition was too coercive).

All of those rulings were, in this writer's view, utterly incorrect. The mandate was a part of a comprehensive regulation of a trillion-dollar industry affecting the commerce of every state and therefore obviously within Congress' enumerated powers. The mandate should not have been deemed a tax, and even if it was, because no one had yet paid it in 2012, the Court had no jurisdiction to hear the case under the Tax Injunction Act (in fairness Mike disagrees with that point); and the states had the right to refuse the Medicaid money if they so wished, and had been put on notice that the law could be changed at any time, as had been done on more than 50 occasions in the past. The Medicaid expansion was not, as Roberts put it, a "gun to the head." The states could have said no.

At the end of the day, however, NFIB is so important for what it didn't do--invalidate Obamacare altogether as four Supreme Court Justices wanted to do. Maybe someday we will learn the real reason why the Chief Justice didn't go along because it is obvious the "law" had very little to do with it. Sometimes that's just how constitutional law works.

3) Shelby County v. Holder: The gutting of the Voting Rights Act in a five-four opinion written by Chief Justice Roberts was an aggressive act of judicial review that allowed many states who before the decision had to clear election changes with Washington D.C., to make such changes on their own (subject to very hard-to-bring later lawsuits). The effects of this decision were dramatic as pointed out by Van Newkirk in The Atlantic in 2018:
Voter-identification laws, which experts suggest will make voting harder especially for poor people, people of color, and elderly people, have advanced in several states, and some voting laws that make it easier to register and cast ballots have been destroyed. For many of the jurisdictions formerly under preclearance, voting became rapidly more difficult after the Shelby County decision, particularly for poor and elderly black people and Latinos.
Not only was the majority's holding harmful for our democracy, but it also contained by far and away the most unpersuasive legal rule of the decade. The Fifteenth Amendment, enacted after the Civil War, prohibits racial discrimination in voting and gives Congress the authority to enforce it through "appropriate legislation." As a textual matter, the word "appropriate" suggests the Court should defer to Congress when it enacts laws under the Fifteenth Amendment, and as an historical matter everyone knows the major purpose of all the Reconstruction Amendments was to make sure the Southern States would treat the newly freed slaves equally.  Nevertheless, the Court in Shelby County announced a brand new, anti-textual, anti-historical rule of constitutional law that states have "equal state sovereignty" even when Congress is acting under the Fifteenth Amendment, and therefore Congress needs a strong reason to treat different states differently, as it did under the Voting Rights Act (which Congress had done since 1965 and which the Court had affirmed under numerous occasions).

So what explains the judicial hostility to the Voting Rights Act (which had been reissued in 2006 by a unanimous Senate, an overwhelming majority in the House, and signed by Republican George W. Bush)? Well, in 1981, a young lawyer name John Roberts working for the Reagan Justice Department wrote that Voting Rights Act “violations ... should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes.” Roberts finally got his way more than thirty years later. Sometimes that's how constitutional law works.

4) Citizens United v. FEC. This is easily the most misunderstand case of the decade. The 5-4 decision along partisan lines by Justice Kennedy has become a rallying cry for political campaigns, a proposed litmus test for judicial nominees, and even the basis of a constitutional amendment. Millions of Americans equate Citizens United with unlimited corporate money in politics, but the case is actually much more complicated than that. 

The issue in Citizens United was whether the government could stop a non-profit company from distributing an anti-Hillary Clinton movie close to the 2008 Democratic primaries. The answer to that question should obviously be no. But the Court went much, much further and essentially held that all corporations, profit or non-profit, have many of the same rights to participate in and spend money on elections as individuals. This broad holding was unnecessary to decide the case and, even worse, the Court itself added the issue and held the case over for a year to give the parties the opportunity to brief the question even though the result was predetermined. 

Election law experts disagree over the extent to which Citizens United both opened the floodgates of corporate money and, even  if it did, whether that is necessarily bad. The opinion applies equally to labor unions. The point I want to make about the case is that it is not easy to explain how the specific result is correct (the government shouldn't be censoring movies by non-profits) without drawing lines that feel arbitrary and awkward. 

My two cents is that distinguishing between non-profits and for-profits, and between the giving of money to PACs, Super PAC's, etc., and the production of movies, books, web pages, etc., are lines that can be coherently drawn even if they admittedly get a bit sticky in practice. In any event, in light of its broad holding, its practical impact, and the shifty way the Justices manipulated the issues in the case, it is not surprising that most Americans think of Citizens United either as a terrible grant of power to corporations wanting to influence our elections or an important free speech decision recognizing that people don't shed their first amendment rights when they band together to form a common and important entity, the corporation. Wherever you happen to sit, Citizens United is a much harder and complicated case than most people realize, and sometimes that's how constitutional law works.

5) McDonald v. City of Chicago This choice may be controversial. After all it was District of Columbia v. Heller in 2008 which first held that the Second Amendment protected an individual right to own guns. But that case left open the issue whether the Second Amendment also limited state power. The Court in McDonald  held that it did. Since that time, there have been hundreds of state and federal court lawsuits challenging numerous different types of gun restrictions. Virtually all of these cases involve state and local laws. 

There are many legalistic arguments one can make that persuasively demonstrate that McDonald is completely inconsistent with text, history, and precedent. But more importantly, there is no issue of constitutional law more local than the balance between gun rights (if any) and community safety. Whether a fetus is aborted in Toledo, Tunica, or Tampa, the same considerations apply, and the same is true for coerced confessions, political speech restrictions, and most other hard constitutional questions. But the balance between gun rights and gun safety is absolutely different in Tunica and Times Square, Tampa and Toledo. One size fits all rules are simply inappropriate when it comes to reaching the right balance between gun rights and public safety. Additionally, over 40 states protect gun rights, and if people in those states don't like the balance struck they can turn to their own state judges. There is simply no need for federal judicial interference when state and local governments enact gun reform laws the people of those states don't like. People don't view it this way, but McDonald is a major anti-federalism decision.

Yet, with one minor exception, the Court has not struck down a state gun law since McDonald  was decided in 2010. However, most experts think that is all about to change due to the substitution of Justice Kavanaugh for Justice Kennedy. The text, history, and prior law haven't changed since McDonald but the people on the Court have. That's how constitutional law changes most of the time.

There were of course many other important cases during the decade. Affirmative action, abortion, religious liberty, and redistricting decisions were also handed down by the Court. But in terms of sheer impact, I think the five above were the most impactful, though reasonable people can certainly disagree.

This is my last post of the decade. Happy holidays to everyone, and I hope the new year brings a tad more joy and comfort to our troubled and divided country.

5 comments:

Asher Steinberg said...

Very reasonable, but the decision to make partisan gerrymandering nonjusticiable seems a much bigger deal to me than ending a preclearance regime that, of course, only policed racial vote dilution, not partisan vote dilution, and did so only in a small number of states (which were by no means the only states where stuff the VRA deems dilutive takes place). I suppose I also don't agree that private suits under the Act are that hard to bring; certainly at the statewide level if a districting map is subject to serious challenge, it will be challenged.

You might be leaving out some major criminal procedure case; I doubt Carpenter is really that important, but in terms of impact, the decision to shield cellphones from warrantless, cause-less searches incident to arrest seems like a major inflection point.

Joe said...

The reach of Shelby v. Holder in practice has been covered by certain experts so the "bigger deal" is not surprisingly up to debate, especially since the Supreme Court already refused to hold on the merits political gerrymandering was justiciable years earlier. The issue was an open question, but by that point it was really mostly a forlorn hope that eventually Kennedy would bite. He never did.

(And, not only can state courts on their own take a partisan gerrymander case, these cases leave open an alternative argument, particularly race discrimination. Thus, especially at this early date, the "bigger deal" is at best "undetermined.")

As a footnote, after Kennedy left the Court, a per curiam in Pavan v. Smith had a pro-gay rights result.

As to the McDonald, the ability to differentiate is possible, but it just wasn't realistic. The Supreme Court in the modern era has been loathe -- in non-jury cases -- to have a two track system for incorporation. The effect of that case is also unclear, at least so far, since most state regulations have been upheld.

But, lists generally are open to debate. Honorable mentions might be Fisher v. Texas [upholding affirmative action], Whole Woman's Health v. Hellerstedt (for now, providing some real bite to abortion rights), Carpenter is a possibility ... it also might be a sign for the future so will come to be more important as might be one of a handful of First Amendment cases that liberals fear.

Happy Holidays.

Greg said...

Asher's point about the partisan gerrymandering decision points out one of the problems with a "most important of the decade" list. Things that happen early in the decade we've had ample time to evaluate the impact. On the other hand, things that happened late in the decade may prove more important, but the impact of those later events hasn't been seen yet.

It seems like it would be interesting to re-evaluate 5 or 10 years later to see if opinions on what were the important decisions change. Would Prof. Segall's most influential cases of 2000-2009 judged today match his judgement in late 2009?

For instance, if the new conservative court largely guts Obergefell v. Hodges, we may decide that one really wasn't as important as we thought it was. However, if legislators start being openly partisan in gerrymandering, that could have a significant impact not just on redistricting but on partisanship in general that we haven't seen yet.

M. Paris said...

Thank you for this. Wrong link on McDonald. Best, Michael Paris

Michael C. Dorf said...

Thanks M. Paris. I corrected the McDonald link.

While I'm here, I want to add that Eric is right that I disagreed about the ripeness issue in NFIB v. Sebelius, but that my disagreement is both less and more substantial than he suggests. It's less substantial because I found the Court's ripeness discussion (under the tax Anti-Injunction Act) unpersuasive; the post above links a Yale LJ Online article by Neil Siegel and me, in which we offered a different way around the tax Anti-Injunction Act. However, my disagreement with Eric about NFIB is also more substantial, because I find the taxing power argument persuasive. I agree that the Court could have and should have upheld the insurance purchase mandate as necessary and proper to the exercise of the commerce power, but there has never been a rule that Congress can only use one power at a time. (McCulloch v. MD makes this point very clearly.) The strength of the taxing power argument is shown by the weakness of the dissent on this point. The dissent goes on at great length finding ways to say over and over that Congress didn't call the payment due for failure to purchase insurance a "tax," but the majority is right that under the prior case law and as a matter of first-order logic, what Congress calls something shouldn't matter. What matters is how it functions. None of that is to say that Eric is necessarily wrong in speculating that CJ Roberts may have had some ulterior and extra-doctrinal ground for his vote; it is to say that based on the face of the Roberts opinion, one doesn't need that hypothesis, because his doctrinal argument is persuasive.