Obama administration brings unity to the Supreme Court

June 26

It’s hard to remember now. But one of the themes of Obama’s 2008 presidential campaign was “unity.” The soon-to-be president and his supporters hoped to transcend the deep partisan and ideological divisions in our society. For the most part, that hope has gone the way of George W. Bush’s promise that he was going to be “a uniter, not a divider.” Perhaps no president could truly deliver on such a promise in this day and age. But President Obama has managed to create a measure of unity in one often-divided institution: the Supreme Court.

In both today’s Noel Canning decision on recess appointments and yesterday’s cell phone search decision, the justices unanimously rejected the administration’s extreme positions, even though they disagreed on other issues involved in the two cases. In Noel Canning, the admininistration’s position that the president had nearly unlimited power to circumvent Senate confirmation of his appointees by manipulating recess appointments failed to win the support of either originalists or living constitutionalists. In the cell phone case, the administration line that the Fourth Amendment allows police to search the entire contents of a suspect’s cell phone any time they are arrested for virtually any reason was rejected by both conservative justices generally sympathetic to law enforcement and Obama’s own two appointees to the Court (one of them a former prosecutor).

These defeats follow a series of other unanimous setbacks for the administration in important constitutional cases over the last few years, which I wrote about in a USA Today op ed last year. The administration’s unanimous defeats in significant constitutional cases cover a wide range of issues, including freedom of religion, property rights, executive power, and the Fourth Amendment. What these otherwise disparate cases have in common is a strong reluctance to accept even modest limits on federal authority.

Unanimous defeats do not in and of themselves prove that the administration’s position was wrong in all these cases. Sometimes, even a unanimous Court can be wrong. Still, when the president’s position in multiple major constitutional cases cannot secure even one vote on an ideologically and methodologically diverse Court that includes two of his own appointees, it is likely there is something wrong with the administration’s constitutional worldview. The mistakes cannot be attributed to low-level underlings. While initial litigation positions in a federal case may often be decided by relatively low-ranking officials, arguments advanced in the Supreme Court are usually approved by high-level lawyers in the Justice Department, the White House, or both. The latter can and often do forego arguments previously advanced in the lower courts.

As I emphasized in the USA Today piece, the Obama administration is far from the first to push the limits of federal power. The Bush administration were no slouches in that respect either. The administration’s flaws in this respect exemplify broader weaknesses in our political and constitutional culture.

It is a good thing that the Court – including its liberal Democratic justices – has rejected the administration’s more extreme claims. It shows that the system of constitutional checks and balances still has some vitality. But the enforcement of constitutional limits on government power cannot rely on the judiciary alone. Many important constitutional issues never get to court at all, such as the administration’s waging of an unconstitutional war in Libya. Others only do so after prolonged delays during which constitutional rights may continue to be violated.

For these and other reasons, executive and legislative branch officials also have an independent duty to respect constitutional limits on their power. They should not feel free to do anything the courts might let them get away with. And public and elite opinion should impose a political price on them when they fail to respect that obligation. A private lawyer can legitimately advance any arguments that might help their client win the case at hand, without worrying about broader implications. Federal officials, by contrast, have a duty to uphold the Constitution that supersedes any obligation to maximize the chances of winning a particular case when the two conflict. Unfortunately, as the administration’s recent record in the Supreme Court shows, such self-restraint is often in short supply.

NOTE: The administration was involved in Riley v. California, the cell phone search decision, because that ruling addressed two consolidated cases, one of which was a federal prosecution.

UPDATE: National Review columnist John Fund notes that the cases decided today and yesterday are the 12th and 13th unanimous Supreme Court defeats for the administration since 2012. In fairness, some of those setbacks were in relatively minor cases. But a good many were on important constitutional issues that raise serious concerns about the abuse of federal power.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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