I’ve greatly enjoyed my stint guest-blogging for the VC and will spend this, my final post, offering thoughts about a few areas of the law in which this court is likely to make significant new doctrine in the years ahead.
The discussion that follows is drawn from several chapters of “Uncertain Justice: The Roberts Court and the Constitution” (co-authored with Joshua Matz).
One of the Supreme Court’s most important roles in interpreting the Constitution is deciding what areas of public policy will be subject to the limits of constitutional law. For the most part, these boundaries are well settled and are not the subject of significant dispute. For instance, laws that burden political speech, searches executed without a warrant, and physically coercive interrogations are clearly covered by the Constitution.
Thus, one might disagree with Citizens United v. FEC (campaign finance) or Maryland v. King (DNA databases), but it would odd to criticize them on the ground that the court has no business at all creating robust constitutional rules in those fields — or on the ground that the court is upsetting settled expectations about where it will limit the states or other branches of government.
In several areas, however, the Roberts Court has undertaken significant projects meant to expand the frontiers of constitutional law itself — and, thus, to expand its own power. There is nothing necessarily illegitimate about these efforts, and indeed in my view at least some of them are admirable, but they are undoubtedly worthy of careful study.
One leading example, covered in Chapter 5 of “Uncertain Justice,” is gun rights. In District of Columbia v. Heller and McDonald v. Chicago, the court set in motion a major Second Amendment lawmaking project. Although courts have thus far moved cautiously in developing gun rights, and have only rarely invalidated firearms laws, the long-term significance of this pair of opinions must not be understated. In courts, legislatures, law schools and popular discourse, they have lent the Supreme Court’s imprimatur to claims that our fundamental charter protects an individual right to keep and bear arms.
Further, as Joshua and I explain in the book, Heller and McDonald are important in ways that are too-often overlooked. For one thing, these cases, erroneously hailed as triumphs of originalism, actually demonstrate a court keenly attuned to evolving legal norms and popular sentiment — and willing to create constitutional law with an eye on the past, present, and future. These cases have also set the stage for more dramatic rulings, whether in response to technological innovation (e.g., guns made by 3-D printers), innovative laws (e.g., mandates to carry firearms), circuit splits (e.g., the hotly disputed issue of rights to keep and bear arms in public), or interaction with other parts of the Constitution (e.g., defining the rights of undocumented migrants). In any event, even if the realities of gun regulation largely remain committed to our democratic process — and thus to the First Amendment — the Second Amendment cases can exert a magnetic pull in that part of American life too.
Another prime example of this Court’s expansion of constitutional law is its approach to federalism. Unlike cases from the 1990s and early 2000s that were concerned mainly with preserving a measure of state primacy in certain affairs, this court’s federalism rulings strike more broadly against any kind of federal “police power,” warning mainly of federal peril to individual liberty.
The central case here is, of course, the Health Care Case. In a dramatic break from the Court’s approach to major social legislation ever since the New Deal, five justices held that neither the Commerce Clause nor the Necessary and Proper Clause supported the “individual mandate” — and four justices also thought the law lacked grounding in Congress’s broad power to tax and spend for the general welfare. Their opinions made significant new law, identifying limits on federal power that had never before been stated or developed.
The Health Care Case does not stand alone.
In U.S. v. Comstock, for example, a 2010 case about the federal law permitting civil commitment of sexually dangerous criminals beyond the date they would otherwise be released from jail, the Court hotly debated the Necessary and Proper Clause. Justice Stephen Breyer wrote an opinion upholding the law, but Justices Anthony Kennedy and Samuel Alito (concurring) and Antonin Scalia and Clarence Thomas (dissenting) called for greater scrutiny of Congress’s claims that laws are “necessary” and “proper” to carry into effect its other powers.
A similar debate played out in U.S. v. Kebodeaux, a 2012 case about sex offender registration laws. Breyer wrote for the Court to uphold the law, but Scalia and Thomas again dissented, and Chief Justice John Roberts (joined by Alito) wrote separately to prevent “incautious readers [from thinking] they have found in the majority opinion something they would not find in either the Constitution or any prior decision of ours: a federal police power.”
In these opinions, as well as in the first decision in Bond v. United States (upholding Bond’s standing), the right-leaning justices — supported by articles written by several members of the VC — have begun a long-term jurisprudential project of crafting new doctrinal limits on federal power under the Commerce Clause, Spending Clause and Necessary and Proper Clause. The doctrine they have produced thus far may not be particularly elegant or stable in its limits, but it has clear growth potential and is plainly a priority for several members of this Court. (The more recent Bond decision (on the merits) avoided a landmark ruling in the area — though the method of its statutory holding was quite dramatic and important — but Alito, Scalia, and Thomas each wrote separately to call for even bolder limits.)
Closely related to these federalism opinions is a third major area of interest and expansion on this Court: the protection of aspects of economic liberty. Although no current justice seems terribly eager to return to the Lochner era, the conservative justices, in particular, have shown a striking willingness to scrutinize issues of economic freedom (understood in distinctly conservative-libertarian terms) through the lens of other constitutional rights.
In 2010, for example, in a case about who owns the pricey real estate created by Florida’s beach-restoration programs, Scalia urged the court to adopt a very broad view of when the state has “taken” property and must therefore pay fair compensation. (This was not the only recent Takings Clause case to divide the Court 5 to 4.) To take another example, two years later, in a case arising from a sinfully boring fight over sewer improvements in Indianapolis, Roberts dissented and invoked equal protection principles to explain why he would invalidate the city’s unusual method of financing its project. As Linda Greenhouse noted in the New York Times, this was one of exceptionally few cases not involving race in which the conservatives saw a violation of the Equal Protection Clause and the liberals did not. In all of these cases, the Court wanted to push the frontiers of constitutional law.
But the clearest examples of this trend are First Amendment cases. In Sorrell v. IMS, for instance, an opinion written by Kennedy and joined by the right-leaning justices plus Justice Sonia Sotomayor, the court struck down a Vermont law designed to lower prescription prices by preventing pharmacies from giving drug companies detailed information about the prescription practices of individual doctors (data used to tailor marketing practices to each doctor). As Breyer warned in an anxious dissent that cited Lochner, this expansion of the First Amendment into the realm of ordinary economic regulation could have profound consequences. He was right to worry: In our information age, as the line between economic transactions and speech blurs, and as disclosure and selective confidentiality rules become more vital to our regulatory schemes, Sorrell’s broad vision of the First Amendment’s domain might imperil whole swaths of financial, corporate, consumer, and medical regulation.
Or consider another major First Amendment cause of this Court: unions. One year after Sorrell, in Knox v. SEIU, Alito, writing for the right-leaning justices, took a decisive step in this court’s transformation of the First Amendment into an instrument for destroying public sector unions. We will have to await this Term’s ruling in Harris v. Quinn to see if the court chooses to continue its use of the First Amendment as a potent anti-union tool.
In each of these three areas — guns, federalism and individual rights relating to economic liberty — the Roberts Court has pushed the frontiers of constitutional law in new directions, empowering itself at the expense of other actors and issuing rulings with far-reaching implications. Some of the most interesting Roberts Court stories in the years ahead will almost certainly arise from these fields, though the path ahead remains fraught with uncertainty.
Again, it’s been a real privilege to join you all here on the VC. Special thanks to Eugene for hosting me and to all VC readers.
If you’re interested in learning more about the Roberts Court, check out “Uncertain Justice,” which explores the issues I’ve discussed here at greater length and tells some great stories along the way.