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Examining the Supreme Court Session Through the Lens of History

July 4, 2012 at 12:00 AM EDT
The Supreme Court's latest term was dominated by high-impact decisions on health care, immigration, criminal sentencing and more. Judy Woodruff looks at how it all played out and examines the historical significance with Marcia Coyle of the National Law Journal and presidential historian Michael Beschloss.
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GWEN IFILL: Now: the recently concluded Supreme Court session, and its impact on the law, policy and politics.

Judy Woodruff has that.

JUDY WOODRUFF: It was a term marked by major decisions on health care, immigration, criminal sentencing, and other big decisions.

We take a look at how it played and some historical context.

And for that, I’m joined by Marcia Coyle, the Washington bureau chief at The National Law Journal, and Michael Beschloss, a presidential historian.

They both join us now.

It’s good to have you both with us.

MICHAEL BESCHLOSS, Presidential Historian: Thank you.

MARCIA COYLE, The National Law Journal: Thanks, Judy.

JUDY WOODRUFF: So, Marcia, let me start with you.

What is this court term mainly going to be remembered for? Clearly, health care. Everybody’s talking about that, but what else?

MARCIA COYLE: Well, I think I would add to that, Judy, it’s also going to be remembered because of health care and, largely through the efforts of Chief Justice John Roberts, a term in which the court really extricated itself from one of the most politically charged terms in decades.

But, aside from health care, we also had a major politically charged case in the Arizona immigration challenge. And there, the court, in a divided decision, found the federal law preempted most of Arizona’s anti-immigration statute.

There also were major decisions in the criminal justice area. If you recall, we talked about the decision — again, it was a 5-4 decision, though — invalidating mandatory life sentences without parole for juveniles convicted of murder.

The court also ruled that a fairly recent federal statute, the Fair Sentencing Act, which reduced sentences for crack cocaine offenses, did apply to a band of offenders who committed their crimes before the act took effect, but were sentenced afterwards.

A couple of major First Amendment cases — the Stolen Valor Act, which makes it crime to lie about getting a medal, the court continued a trend of not wanting to carve out of First Amendment protection speech that a lot of us find very distasteful. They struck down that act.

JUDY WOODRUFF: Michael, what about that first point that Marcia made, the court noted for wanting to — or succeeding in extricating itself from this perception that it was politically divided?

MICHAEL BESCHLOSS: That’s…

(CROSSTALK)

JUDY WOODRUFF: How common is that, how ordinary is that in the history of our Supreme Court?

MICHAEL BESCHLOSS: Usually, it doesn’t extricate itself. It usually lends itself to charges like that at crucial moments, because, Judy, you look at what happened last week, this had all the makings of being FDR in 1936, when big parts of the New Deal were overruled by the Supreme Court.

And the American people, who were voting that year for or against Roosevelt, took that as meaning not that the justices had applied legal theory and said this is not within the Constitution, but they took it to mean the New Deal’s illegitimate, Roosevelt is a bad man, he shouldn’t do anything else that extends the reach of a federal government.

It was something that was very damaging, and could have been to President Obama, I think, had this happened.

JUDY WOODRUFF: And, Marcia, just by saying extricating itself, you’re really talking about a conscious decision on the part of one or more justices to do that.

MARCIA COYLE: Well, I think so, Judy, although I think — I wouldn’t say that the court, that the justices, for example, the chief justice, who formed a majority to uphold the health care act and also was part of the majority striking down much of the Arizona act, made a political decision.

I really believe that he found a way consistent with his own view of the law to uphold the health care act, and that was through the taxing power of Congress. I don’t think he would have signed an opinion otherwise.

But I think what he did was, he — he and the other justices — and it did take give on the part of the more liberal wing of the court as well on the Medicaid part of the act. But they made — they were able to show that this was more of a bipartisan, non-political decision. And that’s how they were able to remove the court from really what’s going to be a political debate concerning the election.

JUDY WOODRUFF: And, Michael, back on the historical perspective, looking at this, have — to what extent have courts in the past felt or believed, to the extent we can know this, that it was damaging to be perceived as having a political divide, a divide along ideological lines?

MICHAEL BESCHLOSS: Sure.

Maybe the best example I can think of is 1974, U.S. v. Nixon, when the court was ruling on whether Nixon, Richard Nixon, should have to give up his tapes which were subpoenaed. And it was a 8-0 vote, including people whom Nixon had appointed.

And some thought perhaps, we should recuse ourselves. And, actually, there was some discussion on the court at the time, we now know from diaries and later records, that, no, it’s better for us to have this ruling including Nixon appointees to show that this is not something that was on political lines.

JUDY WOODRUFF: Marcia, you mentioned a couple of other decisions here.

And I think one question that’s come out of the decisions of this term is, what have we learned about the relationship of this court to other branches of government? Clearly, that question rises — arises from the health care decision, but it does about some of these other decisions as well.

MARCIA COYLE: Well, it does.

Health care in particular, the Arizona immigration case, I think, Judy, even though the court upheld the individual mandate in the health care law, you have to look at the rest of the decision. You had the court putting some limits on Congress’ power under the Commerce Clause, as well as its powers under the tax and spending clause.

In Arizona, though, you see Justice Kennedy writing an opinion that is very strong on the role of the national government in enforcing immigration laws. So, I think it’s hard to say this is a states’ rights court, or this is always a national government court. It really depends on the issue that comes up.

This is a conservative court, though, Judy.

JUDY WOODRUFF: Is it — has it — how easy has it been, Michael, to classify courts in the past on the basis of whether they are a states’ rights court or…

MICHAEL BESCHLOSS: Usually, it’s been easy because they have tended to be categorized on the basis of their major rulings.

Earl Warren’s court, the Warren court, was thought to be this wild — by its opponents, this wildly liberal, usually big-government-oriented court that was doing everything it could to legislate from the bench and extend the realm of the federal government.

But if you microanalyze a lot of decisions that were issued during those years, they don’t really meet that template.

JUDY WOODRUFF: And, Marcia, in terms of what the court did this term and the last couple of terms, what do you look for, for the next term? Are there clear markers, or can we really draw no conclusions about what cases are coming…

(CROSSTALK)

MARCIA COYLE: I wish we could.

This term was unusual in a couple of respects. There were some non-traditional alignments among the justices. You saw several justices going over to the left or to the right depending on the particular issue, more so than we saw last term.

You saw Justice Kennedy, who is obviously the swing vote and always in a majority of the 5-4 decisions — in the past, he pretty much dominated the majorities on the right. But this term, he swung evenly to the left and the right.

So what does this mean for going forward? I would hesitate to say, because next term, it’s a whole different round of issues that the court may face, for example, affirmative action, voting rights, gay marriage. Those are issues that some of the justices, including the chief, have very strong feelings about.

JUDY WOODRUFF: Do we err, Michael, too often in trying to read these alliances…

MICHAEL BESCHLOSS: We sure do.

JUDY WOODRUFF:… on the part of the justices…

(CROSSTALK)

MICHAEL BESCHLOSS: Absolutely. Sometimes, it gets really cartoonish.

And one reason is the political atmosphere, because I guarantee you supporters of both Barack Obama and Mitt Romney this year, you will hear them saying, most important election in probably not American history, but world history, and the fate of the court hangs in the balance.

And the premise there is that Romney will, if he gets appointments to be made, will appoint robots will always do what was considered to be the conservative ruling, and the same thing on the Obama side.

So, as long as the court discussed in such a sloppy way that really doesn’t fit reality very well during a campaign, people expect, I think, this to happen on the court. And, as Marcia said, when you analyze the history, oftentimes, it doesn’t.

MARCIA COYLE: I think Judy, too, someone said this term should show most people that you can’t really cover or read the court like you do Congress. It’s a very different branch of government.

MICHAEL BESCHLOSS: Right.

MARCIA COYLE: And one other point. This is a young court, in the sense that the chief justice has only been chief for seven terms. And when you thank you about a legacy, he’s got probably 20 more years to serve.

JUDY WOODRUFF: It’s good to be reminded about that.

(LAUGHTER)

MICHAEL BESCHLOSS: We’re trying.

JUDY WOODRUFF: It’s not like covering the Congress.

Marcia Coyle, Michael Beschloss, thank you both.

MARCIA COYLE: My pleasure.

MICHAEL BESCHLOSS: Thank you, Judy.

GWEN IFILL: On our website, you can find a slide show that highlights other major cases decided by the Supreme Court over the years.