A Conspiracy Theory About the Supreme Court's Term

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?

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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