Dahlia, Walter, Judge Posner, Kenji, and Marty,
Dahlia, you asked whether this was a liberal term for the Supreme Court. When I first joined the Breakfast Table, I declared that I would refuse to call this term liberal—then incorrectly predicted conservative outcomes in two of the three most important cases left to be decided. As it turns out, Arizona’s independent redistricting commission and a key provision of the Fair Housing Act both survived this term. So I guess I have some crow to eat.
Still, allow me to make a face-saving #SlatePitch: This term was liberal only if you came into it with exceedingly low expectations. Yes, the court declared a fundamental right to same-sex marriage in a broad, progressive opinion that could create a vehicle for constitutional progress. But aside from that, pretty much every purportedly liberal decision merely maintained the status quo, saving a vital law from obliteration.
Take, for instance, Young v. UPS, a case about pregnancy discrimination. Title VII of the Civil Rights Act of 1964 bars workplace discrimination on the basis of sex. In 1976 the Supreme Court decided, bizarrely, that pregnancy discrimination didn’t count as sex discrimination. So Congress amended Title VII to clarify that, yes, pregnancy discrimination is a form of sex discrimination.
The question in Young, put simply, was whether the court would ignore Congress’s clear desire to make pregnant women a protected class. By a 6–3 vote, the justices let the law survive unscathed. A pregnant employee, the court held, can sue her employer if it refuses to accommodate her needs while accommodating others “similar in their ability or inability to work.”
But three justices would’ve merrily gutted the act. Justice Antonin Scalia declared that the majority had written a “new law that is splendidly unconnected with the text and even the legislative history of the Act.” What? The whole point of the law was to protect pregnant women from workplace discrimination, in part by requiring employers to reasonably accommodate them. Rejecting Scalia’s illogic wasn’t a liberal victory. It was just common sense.
Next, consider Williams-Yulee v. Florida Bar. That case dealt with judicial panhandling—namely, whether Florida’s rule barring judicial candidates from personally soliciting donations violated the First Amendment. By a 5–4 vote, with Chief Justice John Roberts joining the liberals, the court found that the rule did not violate candidates’ freedom of speech.
When the decision first came down, I called it “stunning.” Upon sober reflection, I find it depressing that such an easy, obviously correct ruling was surprising at all. Judges, as Roberts writes, are not politicians. And there is absolutely no reason why the Supreme Court should force states to treat their judicial candidates like campaigners for political office. Moreover, maintaining confidence in the judiciary—as well as judges’ impartiality—is a compelling governmental interest of the highest order.
Yet four dissenters howled that the majority had approved “state censorship” that “locks the First Amendment out,” “gag[s]” candidates, and “silence[s]” public debate. That’s codswallop. The Florida rule is a smart, narrow way to make judicial elections a little less corrupt. It silences only one type of speech: judicial aspirants’ pleas for money. Yet the Williams-Yulee dissenters thought even that minor regulation violated freedom of speech. They seem intent on turning the First Amendment into a suicide pact for democracy.
That brings us to this term’s Fair Housing Act case. It is an indication of our rock-bottom expectations that nearly everybody expected this one to end in doom for the FHA. (Civil liberties groups were so certain the conservatives would gut the act, in fact, that they encouraged parties to settle in two previous cases.) Ultimately, Justice Anthony Kennedy joined the liberals to uphold the “disparate impact” provision of the law. Kennedy affirmed that the FHA bars housing discrimination that lacks explicit discriminatory intent but still has discriminatory effects.
To reach this decision, Kennedy read the text of the law, which plainly prohibits discriminatory consequences. But four dissenters would’ve rejected the language of the law and prohibited disparate-impact suits. Never mind that every appeals court to consider the question—as well as Congress itself, in several 1988 amendments—agreed that the law includes a disparate-impact component. The court’s conservatives valued their policy preferences over the text, history, and intent of the law.
Finally, we have King v. Burwell. From the start, King was a nihilistic and nonsensical lawsuit, a gallimaufry of raw partisanship, crass opportunism, and legalistic argle-bargle. The King challengers claimed that, deep in a sub-sub-subsection of the Affordable Care Act, Congress had secretly inserted a provision that barred people in states with federally facilitated health insurance exchanges from receiving subsidies. To make their story a bit less wildly implausible, the King plaintiffs concocted a story that the ACA used the promise of subsidies as an incentive to push states to create their own exchanges.
This tale was a pure fantasy, a fraud, an act of galling deception thoroughly contradicted by the ACA itself. Luckily, Roberts, Kennedy, and the liberals recognized the fundamental dishonesty of the King argument, serving the plaintiffs a massive defeat that actually put the law on firmer legal footing than it was before. The other three justices would have gutted the law, potentially pushing an estimated 8.2 million Americans off their insurance.
We shouldn’t call the King decision a liberal triumph. Yes, Roberts and Kennedy refused to follow the hardcore conservatives down the rabbit hole and destroy a democratically enacted federal law under the flimsiest legal pretense. But King was really more of an institutional victory than a progressive one.
Had the court accepted the invitation and eviscerated the ACA, its legitimacy really would be on the line. Millions would have lost their insurance—thousands, their lives. And why? Beneath the gimcrack pretext, one simple reason: The court didn’t like the law. I’m not confident the court, as an institution, could have withstood the inevitable blowback from such a catastrophe.
Breakfasters: Am I being too cynical? Should I rejoice in the court’s “surprising move leftward” instead of whining that, for the most part, the justices preserved the status quo instead of forging a new, more liberal path? And even if this term was progressive, won’t it likely be an aberration? After all, the court already looks poised to crack down on affirmative action and wipe out public-sector unions next year. We may see rainbows today. But the storm clouds are quickly rolling in.