Linda Greenhouse, who analyzed and reported on the the Supreme Court for years, has been writing again in the Times about the Roberts Court, post-Citizens United.
Greenhouse foresaw the Court's potential for conservative activism back in in 2007. Yesterday she wrote about Justice Alito's "not sure," and revealed her skepticism about the actual damage the Citizens United decision could do.
Now she looks at the possibility for truly serious damage -- what will happen inside the Court, now that Citizens United has been decided -- and it's not a pretty sight.
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.)
"Austin" is one possibility for overturn in a Supreme Court that once adhered to "constitutional avoidance," requiring that "if possible a statute should be interpreted in a way that avoids the need to invalidate it on constitutional grounds." Those days are probably over. Instead of waiting to rule in controversial cases, the Roberts Court may now be looking for opportunities for serial overturns.
Two real possibilities: Roe v. Wade, of course -- and Ricci v. DeStefano, the New Haven firefighters' case.
Declaring the Civil Rights Act unconstitutional? That would be right in line with the desire of movement conservative legal eagles' to roll the Supreme Court back to "before 1937."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.
