A Conspiracy Theory About the Supreme Court's Term

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What are we to make of the Court's willingness to resolve so many politically charged cases before the presidential election?

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If you were a conspiracy theorist with a jones for Supreme Court intrigue, you might be inclined these days to believe that the Court's conservatives have decided to make a stand in 2012. They still have the numbers -- Reagan appointee Anthony Kennedy has by default become the Court's "center," although he is far from a centrist. And they've curiously reached out to take vital political cases -- like today's redistricting case out of Texas or Arizona's immigration-law battle -- that they could have waited a term or two to hear and decide.

They could have allowed the lower courts to determine Texas' Congressional districts for the 2012 election without interjecting themselves in the case. And they certainly could have waited for more lower court rulings from other federal circuit courts -- like the 11th Circuit, for example, which covers Alabama -- before wading into the heart of the immigration issues presented by Arizona's S.B. 1070. There is even serious talk that the justices may quickly take up another Voting Rights Act case, from South Carolina, before the term is through. 

We complain when the justices refuse to take cases we want them to decide; the Court has consistently taken fewer cases than it did before William Rehnquist took over as Chief Justice 25 years ago. But what are we to make of the Court's willingness this term to resolve so many politically charged cases before the presidential election? Is it a coincidence? Or is the Roberts Court telling us something about its perceptions of the upcoming election? Here's the conversation I imagine between the conspiracy theorist and the jurisprudential fatalist.  

The Fatalist says: Look, there are simple explanations for the flood of "sensitive social issue" cases on tap this term. The Affordable Care Act, for example, was always headed for resolution in 2012. And it's an election year, which means the courts must try to move quickly on election law disputes. With overwhelmingly conservative state legislatures (thank the Tea Party and 2010 election for that) seeking in the name of "accuracy" to bar certain voters, it's imperative that the Court give quick guidance on the Voting Rights Act.

The Conspiracy Theorist answers: We know that Justice Clarence Thomas is done with the Voting Rights Act -- he wrote so three years ago in Northwest Austin v. Holder, an 8-1 decision that upheld a provision of the act but which notably left open the question of whether a full challenge to the act would survive. Why wouldn't a Court majority that gave us the dubious Citizens United also strike down the Voting Rights Act? And why would the Court wait any longer to do so, telling Congress it's free to "fix" the act knowing that it likely never will?

The Fatalist says: There's also no need to be suspicious of how quickly the Court has waded into the thicket of immigration law and policy by taking the Arizona immigration case. Sure, the justices could have waited for the law to develop a little further, especially since the most onerous provisions of these new laws have been temporarily blocked by the lower courts. But the Justice Department says that the Arizona SB 1070 case isn't a close call -- that states can't each have their own immigration policy -- so why wait?

The Theorist answers: You forget that the Justice Department asked the justices not to hear the Arizona case and that S.B. 1070 comes to the justices from the 9th U.S. Circuit Court of Appeals, which the Supreme Court loves, just loves, to overturn. Arizona argues that its challenged new measures are an important part of its overall law enforcement scheme -- and they are making that argument to a Court that has been consistently supportive of law enforcement policies and priorities.

The Theorist presses on: Justice Antonin Scalia, another Reagan appointee on the Court, is 75 years old. So is the aforementioned Justice Kennedy. They will both be 80 or so by the time the next presidential term is over. If President Obama wins reelection in November, he could have the opportunity to replace either or both of them, depending upon their health and their beliefs about retirement, and that would shift the balance of power on the Court back to the left. These guys are simply striking while the iron remains hot. 

The Fatalist responds: This is nonsense. No one knows how the coming election is going to turn out -- not even the justices -- so it's silly to believe that the conservatives on the Court are trying cram in a few year's worth of ideology into a single term just in case they lose some of their votes and power during a second Obama administration. It is just as likely that the Republican contender will win and perhaps be in a position to replace Justice Ruth Bader Ginsburg, who turns 79 in March. That would push the Court even further to the right.

The Theorist gets a final word: You just watch. First, the Court ensures that the House of Representatives stays in Republican hands by upholding the redistricting plan created by Texas legislators, the one that federal judges and the Justice Department believe is discriminatory. Then the Court gives Arizona its immigration measures, which in turn support similar regulations in Alabama and elsewhere. And then for good measure it sticks it to labor unions in Knox v. SEIU, another big case which also will be argued this week

The Fatalist does, too: How about we have this conversation at the end of June, when the "results" from the Term are fully in? It's likely that the Court will uphold the Affordable Care Act. And it's not a guarantee that Chief Justice John Roberts and Justice Kennedy will side with Arizona in its preemption battle with the federal government over immigration. Even the Texas redistricting case, which will be argued and resolved first, might go the Obama Administration's way depending upon how Justice Kennedy views the matter.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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