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Decisions Indicate Supreme Court Moved Rightward This Term
Roberts received praise from more than his usual supporters this term for the court's decision on the Voting Rights Act. It concerned Section 5, which requires political jurisdictions in nine mostly Southern states, and parts of seven others, to have any changes in their electoral procedures and laws approved in advance by federal authorities. It is an unprecedented intrusion into state sovereignty that is also widely acknowledged as the key to the political advancement of minorities since the civil rights movement.
From oral arguments, it seemed clear that the court's conservatives thought that Congress's reauthorization of the law in 2006 was so broad as to violate the Constitution. But a showdown was averted when the court ruled 8 to 1 to make it easier for local jurisdictions to exempt themselves from the law, with only a stern warning to Congress that it was likely to find Section 5 unconstitutional if it was not changed before the next challenge.
Yale law professor Jack M. Balkin, who runs a popular liberal blog on the court, wrote that the court's decision to stop short of finding the provision unconstitutional -- as well as its decision to put aside equal-protection questions about Title VII of the Civil Rights Act -- was due to the country's changing political climate.
"If I am correct, what put the conservative Justices (and especially Justice Kennedy) on the defensive was the assumption that they would risk sacrificing the Court's legitimacy in a climate in which neither the President nor the Congress would support their gambit and would in fact do everything possible to undermine their legitimacy," he wrote.
Roberts's supporters were disappointed that the court did not go further -- especially in the Voting Rights Act case -- but attributed the decision to the chief justice's stated belief in minimalism, the theory that cases should be decided as narrowly as possible, avoiding constitutional questions when possible.
And others see the court's conservatives as merely patient. Roberts is 54, Alito 59, Thomas 61, Kennedy 72, Scalia 73. Stevens, however, will turn 90 during the court's next term; Ginsburg is 76. "The jurisprudence of actuarialism," Goldstein calls it. Even if Obama serves two terms, he may not be able to replace one of the conservative justices with a liberal, the move that would really change the court's dynamic.
"This court can afford to be quite patient," Goldstein said. "It will get there eventually."
And maybe sooner rather than later.
On the last day of decisions, Roberts announced that the court was delaying its ruling about whether a film about former senator and Democratic presidential candidate Hillary Rodham Clinton produced by the conservative group Citizens United ran afoul of the McCain-Feingold campaign finance reform act. Instead, the court will take the highly unusual step of hearing oral arguments in September about whether the act's restrictions on corporate and union spending on electioneering in advance of an election is constitutional, as well as revisiting a 1990 decision that upheld a ban on corporate spending on federal elections.
It was a differently composed Supreme Court that decided in 2003 that the McCain-Feingold legislation, known formally as the Bipartisan Campaign Reform Act, met constitutional standards. Scalia, Kennedy and Thomas disagreed at the time.
Since they have joined the court, Roberts and Alito have endorsed each challenge to the act that the court has considered. But they have resisted deciding the broader question until now.
"I think the court will keep going in the same direction," Shapiro said, "and Citizens United will be a good first test of that."