The administration’s win-loss record will sting a lot less, of course, if the court upholds the constitutionality of Obama’s signature domestic achievement, the Affordable Care Act. That decision on health care, which will define the term, could come as early as Monday and almost certainly will be announced by Thursday.
Monday morning, the court issued a ruling on Arizona’s tough law on illegal immigrants, which the Obama administration challenged in court before it could take effect. The court struck down key provisions of the controversial law, but upheld others, giving a partial victory to the Obama administration.
The government’s argument that the law conflicts with the federal authority to decide immigration policy got a sour reception from the justices, but the administration had hoped for at least a split decision on other aspects of the measure. The Supreme Court let stand the provision of the law that requires police to check the immigration status of anyone they detain if they suspect the person is in the country illegally.
The administration’s ungainly portfolio at the Supreme Court this term has drawn attention from all points on the ideological spectrum.
Ilya Shapiro, a constitutional scholar at the libertarian Cato Institute, said the government is to blame for “outlandish claims of federal power” that the court was correct to reject.
Adam Winkler, a liberal law professor at UCLA, recently wrote that the court headed by Chief Justice John G. Roberts Jr. has been “unusually hostile to the Obama administration.”
His conclusion: “This is the year of the Supreme Court’s Obama smack down.”
It might also have something to do with the (bad) luck of the draw. It is the job of Solicitor General Donald B. Verrilli Jr. to defend the actions of Congress and the executive. In some of the government’s high-profile losses in Verrilli’s inaugural term, the administration was defending decisions made long before Obama took office.
But whatever the reasons, the 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 have been a string of high-profile losses in which the government has failed to win the vote of a single justice — liberal or conservative.