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.