Constitution Daily

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Will the Supreme Court take a historic turn in 2012?

December 19, 2011 by Todd Brewster


There have been just 17 chief justices of the United States. Yet this coming year, 2012, Chief Justice John Roberts has an opportunity to add his name to the even more exclusive list of those – like John Marshall, Roger Taney and Earl Warren – whose leadership of the Court has marked a shift in Court history and a new era of constitutional doctrine.

Three hotly-contested issues will bring the Roberts Court center stage. In one, the justices will take up immigration by examining Arizona’s tough new law; in another, they will determine whether the Texas legislature’s re-drawn map of congressional districts can be invalidated by a federal court; and in a third, they will lay the gavel firmly into the 2012 presidential election campaign, when they decide whether the controversial Affordable Care Act signed into law by President Obama can survive constitutional review.

U.S. Supreme Court

Like all federal trials, each of these involves a real “case or controversy”; American law works only from such real-world situations, not abstract issues of principle. Still, each of these cases also contains a starkly-defined question of constitutional or statutory interpretation. How the court rules could reverse decades of precedent and have repercussions for years to come.

The issue over Arizona’s tough immigration law is not directly about whether immigration policy should be made tougher; it is about the tug-of-war between state and federal powers as played out in the doctrine of “pre-emption”; that is, whether immigration law is solely the province of the federal government or whether states, like Arizona, that maintain that the feds are not enforcing the law can in effect trump the federal government and enforce federal law in their own communities more aggressively than Washington does.

The Texas re-districting case may revolve around the tension between federal and state authority, too; but it is equally about the balance between the legislative and judicial branches. Under a provision of the Voting Rights Act of 1965, when a state re-draws its congressional district map, as Texas has just done to accommodate the addition of four new districts, it must have its district outlines approved either by the Justice department or a federal court to ensure that the state respects the need for certain minorities to get representation in Congress as “minority-majority” districts. In this case, a three-judge panel for the D.C. Circuit invalidated the map the Republican-controlled Texas legislature drew, which it found diluted minority representation, and instead the court drew its own.

Naturally, the Texas legislature’s map seemed to favor Republican candidates; the one the court drew, state Republicans insist, favors Democrats.

Now the Supreme Court has agreed to consider which map should prevail. If it decides in favor of the state of Texas, it is likely that the Court will couch its decision in a preference that the judiciary, as an unelected branch, defer a  “political question” to the political branches – i.e., the legislature and governor -- but that would essentially gut one significant part of the Voting Rights Act which was itself established by a “political branch,” the nation’s Congress.

Then there is the big nut. When the Court decided to reconsider a lower court’s finding that the health care reform act violated the Constitution through the so-called “individual mandate” requirement that all individuals must buy health insurance, it agreed to address the most prominent achievement of the Obama administration. But once again, it is not health care per se that the Court is considering; it is the increasingly-maligned “commerce clause” which, like so much social policy originating with the federal government, is the basis upon which Washington claims the power to get involved with health care in the first place, the power “to regulate commerce…among the several states.”

The Roberts Court could either find for the Act, reversing the lower court; affirm the circuit court decision that the individual mandate is unconstitutional; or it could go much further and invalidate the entire act as unconstitutional on the basis that it is an unacceptable use of the commerce clause power. If it goes with the latter, the Roberts Court will be making a revolutionary statement, rejecting 75 years of constitutional jurisprudence and returning the Constitution to a time before the New Deal when free-market principles dominated interpretation. In other words, by the end of this term, the Roberts Court may well have forced a dramatic turn in Supreme Court history.

Todd Brewster is the Director of the National Constitution Center's Peter Jennings Project and the Center for Oral History at West Point.

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