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Whatever Happened to the Minimalist Supreme Court? | The Nation

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David Cole

David Cole

On rights and wrongs in constitutional law, criminal justice and national security.

Whatever Happened to the Minimalist Supreme Court?

The Supreme Court today did not decide either of the two cases in which public interest is greatest—the challenges to the Affordable Care Act and to Arizona’s anti-immigrant law, SB 1070. It did, however, issue four important decisions. In all four, the Court sided against the government and with private citizens or entities. In three, that translated into a victory for liberal values; in the last, however, the Court’s five conservative members reached out to impose new liabilities on unions’ abilities to use dues for political purposes—even though the issue had not been briefed or argued. The results, in other words, were mixed, except for one theme—this is not a Court shy about exercising its power. That may bode ill for healthcare.

In Dorsey v. United States, the Court ruled that Congress’s 2010 reduction in the disparity in sentencing for crimes involving crack and powder cocaine (from 100:1 to 28:1) applies not only to persons who commit those crimes after Congress changed the laws but also to those who committed their crimes before the change but were sentenced after the change took place. Congress reduced the disparity in light of overwhelming evidence that it had vastly disproportionate effects, because most of those sentenced for crack cocaine crimes are black, while many more whites are sentenced for powder cocaine. The Court’s bottom line means that some of the predominantly African-American defendants now serving unconscionably long sentences for relatively small amounts of crack cocaine will have their sentences reduced.

Dorsey involved no constitutional principles but only a question of how to interpret a statute. But it nonetheless divided along ideological lines, with Justice Kennedy joining the Court’s four more liberal justices in concluding that the statute is best read to reach all persons sentenced after its enactment, not only those who committed their crimes thereafter. (The Obama administration supported that position in the case, so the Supreme Court appointed an amicus to defend the sentences upheld below). The statutory construction arguments are complex, but at the end of the day, the result is salutary, as it extends the benefits of a law designed to reduce racial disparities to more African-American defendants. The tragedy of mass incarceration, of course, remains.

In a second decision, FCC v. Fox Television Stations, the Court invalidated fines imposed on Fox Television and ABC for “indecency” for broadcasting brief expletives during the 2002 Billboard Music Awards, and brief nudity during an episode of NYPD Blue. The instances in question—Cher and Nicole Richie saying “fuck” and “shit” during impromptu remarks during the awards ceremony, and a scene that showed a woman’s buttocks for seven seconds and the side of her breast for a moment—seem quaint by the standards of what is routinely available on cable and Internet in American homes today. But the Federal Communications Commission still bans “indecency” on broadcast television, a ban upheld in 1978 against Pacifica for broadcasting comedian George Carlin’s “seven dirty words” sketch. In 1978, the Court upheld that ban on the ground that the television is uniquely intrusive into the home and available to minors. That argument no longer holds, of course, given the ubiquity of screens in private homes. And the broadcasters asked the Court to strike down the “indecency” rules on that ground.

The Court ruled for the broadcasters, but on somewhat a narrower ground. It found that the “indecency” rules were unconstitutionally vague, and failed to give broadcasters fair notice that brief expletives and nudity would indeed be deemed a violation of the “indecency” standard. By so ruling, the Court reaffirmed the important principle that government rules penalizing speech must be especially clear, but left for another day the larger question of whether there is any rationale left for subjecting broadcast television to different constitutional freedoms than those enjoyed by other forms of entertainment and expression. Defining “decency” in non-vague terms has always been difficult, so it is possible that this could mark the beginning of the end of an unwise censorship policy.

A third case, Southern Union v. United States, held that juries, not judges, must make findings of fact that result in increased criminal fines, extending a 2000 decision regarding the Sixth Amendment jury trial right and criminal sentencing. This means that prosecutors must prove facts that influence the amount of fines to the jury beyond a reasonable doubt, and cannot simply assert them after trial to a judge in a pre-sentencing report.

The final case involved unions’ ability to engage in political advocacy. The Court famously freed up corporations to do so in Citizens United, where it struck down restrictions on corporations’ freedom to spend money on political campaigns, thereby unleashing the Super PACs on the American electoral scene. This case involved the rights of unions to engage in political action, particularly where, because of “agency shop” rules, they represent all workers at a particular site, and not just those who voted for the union. The Court has recognized that the unions in such circumstances bargain for all, and therefore should be able to charge all workers dues to cover its operational costs. At the same time, it has recognized that nonmembers have a constitutional right not to be compelled to support the political views of a union they have not joined. In prior opinions, the Court had said that unions could address that issue by issuing refunds to those who “opt out.”

In Knox v. SEIU, however, the Court ruled that in some circumstances, unions engaged in political speech “may not exact any funds from nonmembers without their affirmative consent,” essentially imposing, as a constitutional matter, an “opt-in” requirement where the default hurts rather than helps the union. This is essentially the political strategy that anti-union forces have employed in getting twenty-three states to pass so-called “right to work” laws. But in this instance, the Court has imposed the requirement as a constitutional matter, thereby placing the Constitution on the side of anti-union forces. Justices Sotomayer, Ginsburg, Breyer and Kagan all dissented, noting, among other things, that this issue had not even been briefed or argued, and was contrary to precedent.

At the end of the day, it’s a mixed bag, politically. But one thing is clear—this is not a shy or minimalist Court. And that may not bode well for healthcare, where challenges are asking the Court to depart from generations of constitutional precedent to strike down a law affecting literally every American. On that, tune in next week.

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