Mourning Chief Justice Roberts' Twenty-Year Anniversary: The Ten Worst Constitutional Law Cases of the Roberts Court
We are close to the twentieth anniversary of John Roberts taking office as the Chief Justice of the United States Supreme Court (September 2005). His Court has done almost unimaginable damage to our country in perhaps the most eventful twenty-year period for the Supreme Court in American history.
The conservative justices have destroyed American civil liberties, the separation of powers, and federalism in ways that have played a major role in bringing us to where we are today -- a few short steps away from a country that resembles fascism more than democracy.
Below are my picks for the top ten most destructive constitutional law cases of the Roberts Court in chronological order. It was a hard list to make because there are far more than ten truly terrible cases, and people can reasonably disagree with this list. But this is a blog post, not a law review article. Non-constitutional law cases, such as the Court’s awful administrative law decisions, were not eligible.
One more disclaimer is necessary. The one missing case that many people will likely think should be on this list is Rucho v. Common Cause, which held that partisan gerrymandeering cases are non-justiciable. I have never understood why, as a matter of pure politics, progressives wanted the Roberts Court to have authority in this area which the justices would have used to help the Republican Party. As a matter of constitutional principle, I just don't think judges should be in this business. I understand this is a controversial position (not the first time I have expressed one).
On to the list:
Parents Involved in Community Schools v. Seattle School District No. 1 (2007).
Parents, teachers, students, and school board officials in Seattle and Louisville worked tirelessly for years to devise plans to integrate their public schools because most efforts had been stymied by red-lining, residential housing patterns, and other forms of institutional racism.
The Court struck down these important efforts at the local level with little reliance on text, history, or tradition. The Court’s last sentence was a ridiculous sound bite rejected emphatically by both the dissent and Justice Kennedy’s concurring opinion: “The way to stop discrimination based on race is to stop discriminating based on race.” There was in fact no illegal discrimination at issue in this case, and the best kind of local democracy was pummelled by the Roberts Court.
District of Columbia v. Heller (2008).
For the first time in American history, the Supreme Court found that the Second Amendment creates a private right to own guns separate from military service. The opinion is anti-textual (lopping off the phrase a “Well-Regulated Militia), anti-historical, and has played a major part in the gun culture insanity of death and despair terrorizing our country. Too many historians have criticized all aspects of this Scalia screed for me to attempt any kind of summation of the blatant mistakes in the majority opinion.
National
Federation of Independent Business v. Sebelius (2012).
Although the Court upheld the Affordable Care Act by calling its individual mandate a tax, the Court also placed a ridiculously narrow limit on Congress’ commerce clause power by prohibiting the federal use of mandates in a trillion-dollar industry affecting the commerce of every state.
More importantly, one of the issues was whether Congress could use its spending power to require states to adopt more permissive requirements for people to be on Medicaid as a condition for states receiving future Medicaid payments from the federal government. The law went into effect in 2010, but this part of the law was inoperative until 2014, and even then the federal government was going to pay for the larger number of eligible beneficiaries for the first few years.
For
the first time since the 1930's, the Court said Congress had exceeded its
spending power authority because the condition was too coercive. The Court
described the ACA as including "post-acceptance or retroactive
conditions." This description is a lie. There is no interpretation of
"post-acceptance" or "retroactive" that fits a law passed
in 2010 that gives states notice that the requirements for eligibility would
change FOUR years later, and no additional money from the states would be
needed for several years after that. Many states refused the Medicaid expansion for political and racist reasons, leading to unimaginable suffering for
millions of poor people.
Shelby
County v. Holder (2013).
The Supreme Court struck down Section 5 of the Voting Rights Act, one of the most important laws ever enacted by Congress, which had forbidden certain states and counties with long histories of racial discrimination from enacting new voting measures without the consent of Congress or a special three-judge court. The conservative justices invented an equal state sovereignty principle requiring Congress to have a strong reason to treat different states differently when exercising its power to enforce the 15th Amendment through “appropriate legislation.” That anti-historical, non-textual equal state sovereignty principle had been specifically rejected in a prior case, South Carolina v. Katzenbach. Just days after the decision, Texas and North Carolina enacted tighter voting rules hurting minorities, and red States have continued that trend to this very day.
McCutcheon v. Federal
Election Commission (2014).
In McCutcheon, the conservatives struck down limits on the total amount a person can contribute to political candidates or political action committees. Not surprisingly, the Republican National Committee was a plaintiff in the case, as was a private citizen who wanted to donate more money than the federal law allowed. The Court equated spending on politics with speaking about politics and also held that the only legitimate government interest supporting campaign finance regulation is stopping direct quid pro quo corruption.
That bizarre notion led Richard Posner to write in SLATE the
following: “Obviously, wealthy businessmen and large corporations make
substantial political contributions in the hope (often fulfilled) that by doing
so they will be buying the support of politicians for policies that yield
financial benefits to the donors.... Isn't this obviously a form of corruption?”
I know many will think that Citizens United was
a more terrible decision, but that case overturned the prior restraint of a
political movie, which was pure speech. McCuthcheon equated spending
money with speech (even though they are not the same things), and explicitly rejected any
form of campaign finance regulation separate from rules about quid pro quo
corruption. It is an example of horrible living constitutionalism on steroids
(as are most of the cases on this list, including those that purport to be originalist).
Janus
v. American Federation of State, County, and Municipal Employees, Council 31
(2018).
In Janus, the Court overruled a 1977 precedent and held that states could not require public sector workers to pay union dues going to collective bargaining costs because doing so somehow violated their free speech rights. These workers, however, could say anything they wanted anytime about any subject. This case is about the Court's anti-union preferences, not restrictions on speech.
This anti-federalism decision
overturned laws in almost half the states on a subject that traditionally had
preoccupied the Court’s conservatives -- the relationship between states and their
own work forces. The inconsistency with precedent and interference with states’
rights is a hypocritical nightmare.
In three cases culminating in the Carson opinion, the Roberts Court has held that, if a state decides to financially assist either secular private schools or the parents of children attending such schools, it also must provide the same help to religious private schools or parents of children attending such schools.
In Carson, Maine had a serious
problem. There are approximately 180,000 elementary and secondary school
children in the state spread out over many public school districts. In rural
areas, there are not enough students to fill public schools so Maine helps
parents financially send their children to private schools, which had to be
"non-sectarian.” Under the law at issue in the case, a school was sectarian
if it engaged in religious instruction.
The Carson majority, relying on two recent cases, Trinity
Lutheran v. Comer, and Espinoza v. Montana
Department of Revenue, held that Maine had no choice but to fund
religious private schools if it wanted to fund secular private schools. The
result of that decision is that taxpayer money must be used for religious
education if it is used for secular education. Nothing in the text or history
of the free exercise clause supports, much less requires, that result, and this
case is also part of the Roberts Court’s deletion of the establishment clause
from constitutional law.
Dobbs
v. Jackson Women’s Health (2022).
I had to think hard about including Dobbs on
this list because, as regular readers of this blog know, despite being radically
pro-choice, I have always maintained that Roe and Casey were wrongly
decided and over the long turn did more harm than good. But I am humble enough to
believe that maybe I am wrong about that and, in any event, the way the
decision was written is completely indefensible.
The Court egregiously refused to engage in any meaningful
equal protection analysis; relied on historical figures from centuries ago who
lived in England and treated women as property or worse; and disparaged the prior
work of Republican Justices Blackmun, Kennedy, Souter, and O’Connor in the
harshest of rhetoric that can only be viewed as personal attacks.
Also, it must be remembered that Chief Justice Roberts criticized the majority for deciding whether to reverse Roe when that issue was not part of the question presented and not even fairly raised by the case. Roberts said the following:
Surely we should adhere
closely to principles of judicial restraint here, where the broader path the
Court chooses entails repudiating a constitutional right we have not only
previously recognized, but also expressly reaffirmed applying the doctrine of stare
decisis…. Its dramatic and consequential ruling is unnecessary to decide the
case before us.
Almost everything about Dobbs was unnecessarily
awful.
Students for Fair Admissions v. President and Fellows of Harvard College (2023).
After almost 45 years of allowing universities to use race in a narrowly tailored way in university admissions, the Court held that universities may not use race at all in their admissions process. There is no text, history, or tradition to support this color-blind mandate fabricated by the conservative justices and binding on all fifty states. And, once again, this supplanting of local discretion is an affront to federalism equaling if not outdoing Roe or any other “liberal” decision.
If the Court had just said all racial considerations are off limits to public schools and to schools that receive federal money, at least it would have been an administrable, if not tragic anti-constitutional holding. But the Court reached two other conclusions that made no sense. The justices said that the opinion had no effect on the use of race by military institutions such as West Point and the Naval Academy, without issuing any explanation.
The Court also issued this impossible to comprehend sentence given the rest of the opinion: “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” Universities are not allowed to take race into account, but they can read essays from applicants who talk about how their race impacted their lives. What are admissions committees to do after they read about the race of the applicant? This holding creates an incoherent mess, but in the meantime colleges and universities take huge risks if they take into account racial considerations.
In this case, the Court effectively immunized the President from criminal prosecution for acts done while in office, putting him well above the law. The Court created three buckets of Presidential conduct. For core constitutional functions, such as the President's Commander-in-Chief and pardon powers, he has absolute immunity for all time. For other "official" functions, he has at least presumptive immunity. And for unofficial conduct, he has no immunity.
Had the Court stopped there, the lower courts would have had to figure out in both Trump’s criminal cases and possible cases against future presidents which buckets the alleged criminal conduct fell into, but prosecutions would have been possible (albeit quite difficult which is maybe how it should be).
Alas, the opinion went much further and held that, when judges try to figure out the relevant buckets, evidence of motive and concededly unofficial acts cannot be considered. Pursuant to those gratuitous and absurd add-ons, the Court ruled, for example, that Trump's conversations with his acting Attorney General had to be stricken because those were official acts no matter what the two men discussed.
These evidentiary limitations, which seemed tailored to Trump’s cases, severely limit any possible prosecution against a former president. But who knows? Trump's lackey of an Attorney General has launched a grand jury investigation into allegations that members of the Obama administration, perhaps including President Obama himself, committed what Trump's lackey of a Director of National Intelligence called treason when they concluded that Russia sought to aid Trump in the 2016 election.
If a grand jury indicts Obama, maybe then the Roberts Court will discover that the evidentiary and other limits on prosecuting former presidents are not so severe after all. The Court might even make those limits disappear, just like it made the right to abortion, the ability of universities to use race in admissions, the power of states to require union dues from its work force, the power of states to fund secular but not religious schools, the ability of states and cities to ban and/or severely regulate handguns, the power of Congress to enact reasonable campaign finance reform, and the ability of Congress to protect minorities from racial discrimination all disappear during the most egregious twenty years in Supreme Court history.
-- Eric Segall