Bashing Congress And Boosting Corporations Is Nothing New

For the Supreme Court’s Conservative Bloc 

In their opinions on the constitutionality of the Affordable Care Act, the Supreme Court’s conservative justices surprised even seasoned experts, with their break from the long tradition of deference to Congress in constitutional challenges to economic regulatory and safety net statutes.   All five of them brazenly second-guessed Congress’ policy judgments, ignored its factual findings, and embraced arguments suggesting that, in the words of Harvard Law Professor Charles Fried, formerly Solicitor General for President Ronald Reagan, “pre-1937 decisions and principles, long believed discredited and abandoned, might once again be invoked to limit Congress’ powers.”  Fried’s critique applied especially to the dissent filed by Justices Kennedy, Scalia, Thomas, and Alito – who would have struck down the entire Act — but also to much of what Chief Justice Roberts contended, though he ultimately voted to uphold most of the law. 

Experts might have been a bit less startled if, in the months and years before the ACA decision, they had taken the full measure of the conservative Justices’ long record of systematically gutting progressive statutes in the guise of interpreting and applying them.  This record is detailed in a new article of mine, “Stripping the Gears of National Government: Justice Stevens’ Stand Against Subversion of Progressive Laws and Lawmaking,” published in NORTHWESTERN LAW REVIEW as part of a symposium on Justice John Paul Stevens’ legacy.    

This post provides a few highlights from the article.  As I discuss in detail, since William Rehnquist became Chief Justice in 1986, and more intensively since he was succeeded by John Roberts in 2005, the Supreme Court has been aggressively activist in narrowing, undermining, or effectively nullifying an array of statutes—in particular the vast edifice of regulatory, safety net, and civil rights laws enacted by the federal government as well as by state governments since the early twentieth-century dawn of progressive government. The conservative bloc of Justices have developed a formidable arsenal of largely non-constitutional techniques for limiting the reach and impact of progressive statutes, blunting or neutralizing the intent and purpose of the legislatures that enacted them, elevating the Court’s power vis-à-vis both Congress and state legislatures, and even impeding Congress’ practical capacity to carry out its constitutional functions.  As Senator Patrick Leahy (D-VT) put it at a Senate Judiciary Committee hearing in 2008: 

[T]he Supreme Court has ignored the intent of Congress in passing these measures, oftentimes turning these laws on their heads, and making them protections for big business rather than for ordinary citizens.

All this judicial power-grabbing has gone on with little attention from the media, and infrequent notice or push-back from progressive advocacy communities or from Congress – with notable exceptions such as Senator Leahy’s 2008 hearing and the 2009 legislation overturning the Court’s notorious 5-4 Lilly Ledbetter decision that eviscerated workplace discrimination protections. 

And the pace, scope, and audacity of the conservative bloc’s drive to nullify statutory pocket-book protections for ordinary citizens continues to accelerate.  Look, for example, at recent decisions in which the conservative Justices have transmuted an originally obscure 1925 statute – the Federal Arbitration Act — designed to streamline out-of-court resolution of disputes between large organizations with substantially equal bargaining power, into a platform for the Court to nullify federal and state laws designed to ensure individual workers and consumers access to court to protect their rights against big businesses with vastly superior leverage.  Former Justice Sandra Day O’Connor termed the the conservative Justices’ forced arbitration jurisprudence “an edifice of [the Court’s] own creation.” Former Justice John Paul Stevens observed that that the conservatives’ distortion of the Federal Arbitration Act was an example of judges “skew[ing]” statutes to match their own “policy preferences.”  The article details how, in the most recent, and perhaps most radical expansion of that Frankensteinian doctrinal “edifice,” the 2009 case, AT&T Mobility v. Concepcion, Justice Scalia delivered a 5-4 decision that “is a virtual rogues’ gallery of the conservatives’ manipulative interpretive techniques.”  

When I wrote my article, before the Court ruled on the constitutionality of the Affordable Care Act, I noted  that the conservative bloc’s long campaign to marginalize progressive statutes through result-driven interpretation provided a “roadmap” of the activist “bag of interpretive tricks” they would need to strike down the ACA.  The article expressed concern that hostility to the progressive handiwork of Congress and state legislatures could “metastasize from the Court’s statutory interpretation precedents to its constitutional jurisprudence.”  Regrettably, just such a reactionary shift was evident in the conservative justices’ opinions issued on June 28.