Search Blog Posts

Saturday, October 25, 2014

More Evidence That It’s Not a “Conservative Supreme Court”

There is a common media myth that the current U.S. Supreme Court, or at least a majority of the current justices, is “conservative.”

But if a “conservative” justice is one who consistently interprets the Constitution in accordance with traditional methods of judging—as the Founders intended for it to be interpreted—then the Court is anything but conservative.

On social issues the Court has been pushing society to the Left. Otherwise, the best description of its jurisprudence is “status quo.” And in this instance, preserving the status quo renders the Court liberal, not conservative.

That is because the status quo the justices are preserving is a body of liberal jurisprudence created in the 20th century when the Court was usually controlled by “progressive” majorities.

The Court’s tendency to protect liberal jurisprudence appears even in cases where the specific outcomes are pleasing to conservatives. In fact, the “conservative” outcomes often are relatively marginal—minor victories—while the jurisprudence that underlies the result is a major triumph for liberals.

Three cases from the Supreme Court term illustrate the point.

The first is the famous Hobby Lobby case, in which the Court ruled that the Religious Freedom Restoration Act (RFRA) protects an employer’s right not to provide abortifacients. I have written elsewhere about a liberal victory in Hobby Lobby that received almost no publicity. But there was another, more important, liberal victory on a point of fundamental principle.

The Hobby Lobby dispute arose from federal regulations of employment and of health insurance purportedly authorized by Congress in the Affordable Care Act (Obamacare). Unlike the “tax” justification for Obamacare’s individual insurance mandate, the supposed constitutional basis for those regulations is Congress’s Commerce Power, contained in the Constitution’s Commerce Clause and Necessary and Proper Clause.

Everyone concedes, at least in theory, that Congress has only the authority the Constitution grants it—Congress’s “enumerated powers.” But properly construed, Congress’s enumerated power to regulate “Commerce” does not encompass employment relations or insurance, except in some peripheral situations. The Supreme Court recognized this consistently for the Constitution’s first 150 years. Indeed, during that time the Court held repeatedly, and unanimously, that most insurance is NOT “Commerce.” It was not until “progressive” justices took control in in the late 1930s and 1940s that the rules changed, and it was not until relatively recently that Congress began systematically to interfere in the insurance market.

A bench consisting of traditional (conservative) justices, therefore, would have held that the Obamacare regulations were outside the federal government’s enumerated powers, and thereby invalid for that reason. Such a court would not have reached the RFRA issue because there was no need to do so.

A second example from the Supreme Court term just past is the campaign finance decision in McCutcheon v. Federal Election Commission. This case invalidated a congressional effort to limit the total amount any person could donate to all candidates combined. 

The basis for the decision was the Free Speech Clause of the First Amendment. Media outlets have described this case also as a “conservative” triumph.