MARGARET WARNER: We turn now to the Supreme Court, where justices wrapped up the term with a blockbuster week of decisions on affirmative action, the Voting Rights Act and same-sex marriage.
More broadly, many of the term’s 54 rulings could have lasting effects on business practices, employees, individual rights, and the balance between Congress and the states.
For more on this bigger picture, we turn once again to Marcia Coyle of The National Law Journal. Her new book is “The Roberts Court.” And how appropriate.
So, Marcia, what is — if you step back, is there a big theme for this term, something that really define this is term of the Roberts court?
MARCIA COYLE, The National Law Journal: I think so, Margaret.
If I recall, back in October, when the term began, I said this would be a term about equality because of the potential for major decisions involving affirmative action, voting rights and same-sex marriage. I think this term will be known for the court’s dramatic invalidation of a key section of the Voting Rights Act and for its very significant, but incremental step toward same-sex marriage.
MARGARET WARNER: And in both those cases, the court either in one case invalidated the Defense of Marriage Act entirely passed by Congress and in another pretty much gutted the Voting Rights Act, also passed by Congress a couple of times.
MARCIA COYLE: Right.
MARGARET WARNER: Would you call that an activist court?
MARCIA COYLE: Activist is such a loaded term. I’m very careful about using it.
Generally, a court is considered activist when it strikes down a law that Congress enacted and it’s considered negatively activist by the people who supported the law. Chief Justice Roberts in the voting rights decision quoted from an old opinion in which he — the opinion said that striking down an act of Congress is the gravest and most delicate act that the court is called upon to perform.
So I think when the court strikes down a law, you have to really look very closely, especially if it’s a 5-4 decision, at why it did that. Did the law discriminate? Did Congress exceed its powers under the Constitution? Did Congress not have rational reasons for it?
So we look saying — not saying whether it’s right or wrong. The court striking down the key section of the Voting Rights Act, yes, I think that was activist. Striking down Section 3 of DOMA, yes, that was activist, I think on DOMA less so than on the Voting Rights Act, because Congress was given explicit power under the 15th Amendment to ensure the guarantee of equal protection in voting rights.
DOMA was enacted almost as a panicked reaction by Congress to a Hawaiian Supreme Court ruling. It didn’t do hearings. On the Voting Rights Act, Congress had 20 months of hearings, a 15,000-page record justifying why it was reauthorizing the act in 2006. So, as I said, not saying whether it’s right or wrong, yes, these were activist rulings.
MARGARET WARNER: Now, another major party in many of these cases were the states. How did the states fare? Were they winners in a lot of these cases or was it mixed?
MARCIA COYLE: I have a hard time seeing any real consistency in how the court this term approached either state power or congressional power.
I think that there is language in the DOMA decision that favors states’ rights but also it speaks of equality under the federal Constitution. The decision doesn’t seem to rest on states’ rights. On the other hand, the Voting Rights decision, there was great concern about states’ rights. So I think this terms, you have winners and losers. And one of the losers, I think, is Congress for the most part.
MARGARET WARNER: Now, yesterday, I think I received this from the Chamber of Commerce touting how many cases that they have been a party to they won. Is this — was this a very kind of pro-business term?
MARCIA COYLE: The court has been accused of being pro-business almost since the time Chief Justice Roberts took to the bench in 2005.
And the business community has won significant victories in the last eight years, and in particular in this term. I would point to certain areas where the business community has been very successful. The court has tightened rules on forming class actions. It is enforcing arbitration agreements. Where consumers may have small claims, the court has said pretty much you cannot band together in class actions in order to arbitrate those claims.
Even under our federal job bias laws, the court is making it harder for employees to bring discrimination claims or to prove them. So, yes, I think business has been very successful this term.
MARGARET WARNER: So what — to what degree is Chief Justice Roberts shaping this court, and, if so, in one what direction?
MARCIA COYLE: I look at this court and on the surface this is a court that has five conservatives and four moderate to liberal members.
Chief Justice Roberts has a conservative majority. Is he moving the court to the right? Well, the court began moving to the right rather significantly under Chief Justice Rehnquist. And Chief Justice Roberts has a fairly solid conservative majority, except Justice Kennedy. Now, Justice Kennedy can move left or right in a very narrow band of cases, as we saw this term in equality cases, cases involving the dignity, the liberty of the individual.
And so I think Justice Kennedy emerges this term as being most influential.
MARGARET WARNER: Because he is the swing vote. He was in the majority more than anybody.
Is that in a particular direction? I mean, you said individual liberties. What else? Can you often when you hear that arguments and you analyze the case predict with some certainty, at least in your own mind, if not for our viewers, which way Kennedy will go?
MARCIA COYLE: Not always.
There are certain areas where he’s been consistent in how he has voted over the years. The First Amendment, he’s almost absolutist on First Amendment free speech. And, again, even with DOMA, it wasn’t entirely surprising, because he wrote two prior decisions on discrimination on the basis of sexual orientation.
It was — voting rights and affirmative action, he shares the chief justice’s dislike of race-based classifications. But he’s not willing to go as far or as fast as the rest of the conservatives on the court in those areas. He’s not been willing yet to say race no longer matters in this country.
MARGARET WARNER: Hence, the affirmative action decision, the University of Texas one. Essentially, it lives to fight another day.
MARCIA COYLE: It does. And it’s really a surprising decision, Margaret, because it took eight months to produce a 7-1 ruling that was 13 pages long.
So I would love to know what happened behind the scenes.
MARGARET WARNER: I’m sure you will find out.
Marcia, thank you so much.
MARCIA COYLE: My pleasure.