News & Events

Print/PDF this page:

Print Friendly and PDF

Share this page:

The Next Time—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on January 28, 2010.

The Next Time
By Linda Greenhouse ’78 MSL

Three years ago, after Chief Justice John G. Roberts Jr. led the Supreme Court to the brink of overturning a few precedents but then blinked, a frustrated Justice Antonin Scalia accused the chief justice of “faux judicial restraint.”

It was foreseeable then that something would have to give: either the faux or the restraint. Now we know. Goodbye to restraint.

Whether the court’s exaltation of corporate speech in its decision in Citizens United v. Federal Election Commission will “open the floodgates for special interests,” as President Obama said in the State of the Union speech, or whether the impact will prove more modest is not my focus here. As I previously noted, I was no great fan of the now-invalidated McCain-Feingold provision that prohibited corporations and labor unions from spending money from their treasuries (as opposed to money from their political action committees) to buy television time to advocate for or against a candidate for federal office during the weeks leading up to the election. It had always struck me as a ham-handed measure that accomplished too little at too great a cost to the First Amendment.

But while I’m unsure of the decision’s impact on the political system, I have no doubt about its impact on the Supreme Court itself: the Roberts court has lost its virginity.

The question now is what the Roberts majority’s next target will be — where will the court’s raging judicial hormones lead it next, now that it has experienced the joy of overturning?

The Roberts court in fact had previously overturned several precedents and cast doubt on several others. Nonetheless, there was a first-timer’s clumsiness in the way the 5-to-4 majority finished off Austin v. Michigan Chamber of Commerce, a 20-year-old precedent that the Rehnquist court had invoked just over six years ago when it upheld the McCain-Feingold statute. (Austin held that the government could require that corporations spending money on politics do so only through their political action committees – money raised for political purposes — and not from the general treasury.)

“In this case, we are asked to reconsider Austin,” Justice Anthony M. Kennedy wrote in the second paragraph of his 57-page majority opinion in Citizens United. Well, not exactly. It was the court itself that put Austin in play, with its surprise order on the final day of the last term. Rather than issue the expected decision, the justices told the lawyers to reargue the case and to address whether the court should overrule both Austin and the relevant portion of the 2003 decision that upheld the McCain-Feingold corporate speech limitations.

In more genteel times, the court waited, like a girl at the senior prom, to be asked to dance. It contented itself with answering the questions posed by the parties, and didn’t order them to make more sweeping arguments. The first 19 pages of Justice Kennedy’s opinion – and nearly all of the concurring opinion that Chief Justice Roberts filed – explain defensively why the court sped past every available off-ramp on its way to its desired destination in this case.

The court’s own norm of “constitutional avoidance” requires that if possible a statute should be interpreted in a way that avoids the need to invalidate it on constitutional grounds. There were obvious ways to follow that rule in this case: decide that the provision did not apply to nonprofit advocacy groups like Citizens United, or that the film it wished to show was not the type of broadcast that the provision covered. But Justice Kennedy insisted that these avoidance mechanisms were not available because in order to use them, the court would essentially have to rewrite the statute.

Horrors! No matter that last June, the court avoided a politically disastrous invalidation of the Voting Rights Act by engaging in an even more implausible rewriting exercise. It offered a Texas sewer district that had challenged the Voting Rights Act an opportunity to “bail out” of the law’s coverage – even though the law makes such districts expressly ineligible for a bailout. Justice John Paul Stevens, writing for the four dissenters in Citizens United, pointed this out in a footnote.

The majority’s decision in Citizens United sheds retrospective light on that shameless performance in the Voting Rights Act case. There is an unresolved debate over whether the court’s punt was an exercise in judicial restraint by Chief Justice Roberts, who wrote the opinion, or whether, to the contrary, it resulted from his failure to round up sufficient votes to declare the challenged section of the act unconstitutional – the path the court seemed to be on when the case was argued. Citizens United fortifies my belief that a failure of nerve, and not ambition, led to the result in the voting rights case.

Which brings me back to the question of what’s next. I don’t believe it’s Roe v. Wade, although I suspect that four members of the court, Chief Justice Roberts, Justice Scalia, and Justices Clarence Thomas and Samuel A. Alito Jr., would toss the abortion case over the side in a heartbeat. But for Justice Kennedy to join them, he would have to renounce his own vote in Planned Parenthood v. Casey, in 1992, which reaffirmed the right to abortion. There are few things a justice dislikes more than repudiating a prior vote. (Justice Kennedy dissented in the Austin campaign finance case, so the outcome of Citizens United was a validation and not a repudiation.)

A target that does bear watching is the heavily freighted civil rights issue that the court raised and then skirted last June in the New Haven firefighters case, Ricci v. DeStefano. The issue in that case was whether the city engaged in a prohibited act of employment discrimination when it discarded the results of a promotion exam on which no black test-taker scored high enough to win a promotion. White firefighters who believed they were entitled to promotion sued under Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race.

The original Title VII, in 1964, prohibited “disparate treatment” on the basis of race. In 1991, Congress amended the law to prohibit employment policies that have a “disparate impact” as well. The question for the Supreme Court last June was whether, in trying to avoid the racially disparate impact of the exam, New Haven had made the successful white firefighters the victims of disparate treatment.

The court ruled against the city; Justice Kennedy wrote for the 5-to-4 majority that New Haven’s concern about liability for the racially disparate impact of the exam was overblown and insufficient to justify withholding promotions from the successful white test-takers.

The decision avoided a tricky question: suppose the racially disparate impact of a municipal employment policy is so grave that the Civil Rights Act requires a remedy that itself takes race into account – in other words, a remedy for disparate impact that requires disparate treatment.

The court’s current majority has made clear that for the government to count individuals by race for almost any purpose is a violation of constitutional magnitude. So how could a statute that could require such an outcome be constitutional? In the New Haven case, Justice Kennedy left it to Justice Scalia to observe sarcastically in a concurring opinion that the court’s resolution of the firefighter dispute “merely postpones the evil day on which the court will have to confront the question” of the Civil Rights Act’s constitutionality.

Finding the law unconstitutional would be an astonishing step, all the more so because the Civil Rights Act’s current form is a Congressional response to a series of Supreme Court decisions in the late 1980’s that gave the law a reading that Congress thought was too narrow. The 1991 amendment codified a unanimous opinion of the Burger court, which in 1971 interpreted the original Civil Rights Act to bar employment policies that had a racially disparate impact, such as education requirements that were unrelated to the actual job.

It would not surprise me if Justice Scalia’s “evil day” arrives, and when it does, the court will find itself at war not only with Congress but with its own earlier self.