As usual, the Supreme Court’s recent term ended with a bang with decisions on Obamacare subsidies and gay marriage. I suppose, considering we are entering a presidential election year, the GOP should thank the Supreme Court. With Obamacare, which remains unpopular according to most polls, the GOP can now make a more forceful argument that the only way to rid us of it is through a Republican president. As for gay marriage, they can say they wished the democratic process could have played out, but the decision is what it is and they respect the Court.
The big question among the pundit class is whether the Roberts Court, and John Roberts in particular, is moving to the Left? Ideally, you cannot classify a Justice based on where they stood in a major case so calling Roberts a liberal because he has now twice upheld Obamacare is a little misguided. Before we answer that burning question, we need to look back on some cases from this term in various areas.
In the criminal law area, we found that police misunderstanding of a law that led to an arrest is “harmless” even though under the law as written a traffic stop should never have occurred. Chalk one up for police ignorance here. However, we find out that with a legitimate traffic stop where the officer had reasonable suspicion of illegal activity detaining that vehicle for a drug dog sniff was unconstitutional. So– the prosecution of the driver in the car that should have never been stopped in the first place is fine, but the prosecution of the driver of the car legitimately stopped who happened to have methamphetamine is not alright…
We found out that the Fish and Wildlife Service can now use the anti-destruction of evidence aspects of Sarbanes-Oxley- a law designed to thwart fraud in the banking and securities industries- to prosecute a fisherman who tossed over underweight fish. And a law used to enhance sentences when a bank robber takes hostages can be used in burglary/home invasion cases where the victim was moved from one room to another. There were two drug cases whose outcome was so obvious they must have tried really hard to get two hours of oral argument out of them. The first answered the obvious question that a sock used to carry two prescription pills was NOT drug paraphernalia. The second case decided that a man prosecuted for possession of a drug analog was wrong because he willingly discarded the drugs to be on the safe side since he was unsure they were illegal. It should be noted that the “drug” in question was designated an analog after he had been selling it. In short, he was prosecuted for doing the right thing.
With police brutality and excessive force the rage these days, the Court was presented with two cases. It would appear that if in pretrial detention, excessive force lawsuits could proceed, but not if excessive force was used during the actual arrest, even if the person arrested suffers from a disability. One can live with these decisions since law enforcement needs to have some leeway in handling things on a case-by-case basis. The “in custody” situation is clearly a more controlled one than a mentally disturbed woman barricaded in a room who actually attacked and injured police officers. Perhaps they could and should have exercised better judgment, but that is easy to say when you don’t have someone coming at you with a knife.
For purposes of this article, the other area to be discussed will be the Executive. In the area of foreign affairs, there were two victories for the executive branch. In the Jerusalem passport case, on its second go-around, the Court ruled that although the legislative branch has a say in foreign policy without specifying that “say” beyond the power of the purse, it was the role of the executive to recognize foreign governments. Part and parcel of that is the State Department’s right to put on passports and birth records whatever they deem necessary to effectuate a coherent foreign policy. This State Department directive ran counter to a 2002 law allowing “Jersusalem, Israel” to be placed on birth records if a family so desired. The second case involved the power of consular offices to deny entry visas to foreign spouses of American citizens. Here, the conservative wing of the Court prevailed in the denial of the visa citing no liberty interest on the spouse’s part and no denial of due process under existing law. Slowly, the Left has been chipping away at the doctrine of no review for visa denials. This case involved a spouse who was at one time an official in the Taliban government in Afghanistan. Again, like the passport case, the Executive prevailed.
Where they did not prevail was in the TSA whistle-blower case and the California raisin case. But, these were not major victories against the Executive when rightfully analyzed and in the practical sense. With the TSA case, an employee revealed that air marshalls were cutting back on long-distance flights. The Court, in a narrow ruling, decided that the revelation was not specifically prohibited by statute. It was, however, prohibited by TSA regulations, but that did not matter. In short, they made a convoluted case more convoluted and twisted and left enough leeway for the TSA to amend their rules and regulations so that in the future, another whistleblower may not fare as well before the Court.
In the aftermath of the California raisin case, some headlines declared the end of the New Deal. Although the government policy in question here is rooted in crop price support schemes developed during the New Deal, a closer analysis reveals otherwise. The particular program deemed a taking worthy of “just compensation” is peculiar to California raisins, almonds, dates, dried prunes, walnuts, tart cherries (grown in seven other states) and spearmint oil (grown in five other states). These crops are certainly affected by the ruling. Left untouched, perhaps for another day, are the big crops that receive price supports like corn, wheat and soy. In fact, the schemes used with respect to those crops are very different than with California raisins and would likely survive scrutiny. Thus, this is not a major win for free market conservatives who would like to see agricultural policy changed.
In part 2 on Friday, I will look at how civil rights and free speech fared this past term. Part 3 will answer the nagging the question- is the Roberts Court drifting Left?