The Supreme Court’s October term may end with a bang, but it is beginning with a whimper. So far, the Court has granted review in a few interesting cases: Can police stop you and ask to search your car because they think something you did was illegal, even though it wasn’t? Does restricting teeth-whitening to licensed dentists violate the Sherman Antitrust Act? Is dumping fish overboard like shredding documents? When can posting apparent threats on Facebook be a federal crime? But there are no true landmarks on the current docket.
That will change—the same-sex marriage cases are almost sure to be heard before next June’s adjournment, and there could be a challenge to the subsidy language in the Affordable Care Act. Those two cases could be added as early as October 6, though most observers think it won’t be that soon.
This momentary lull, then, may be a good moment to look at the larger picture. What is the “Roberts Court” becoming? Some commentators have suggested that this Court is just a slightly more conservative version of the Rehnquist Court—steering, so to speak, right-by-right-right instead of right-by-right. I am not sure I agree. I think that, last term, we got a glimpse of some interesting new ideas dancing around in the mind of the five conservative justices.
Of those ideas, possibly the most ominous is the court’s evolving idea of the role of “the majority” under the Constitution. Does the majority have constitutional rights? And if so, who is the majority anyway?
Consider McCutcheon v. Federal Election Commission, in which the Court, 5-4, held that Congress could not limit the total amount any one donor can give to all candidates and committees in one two-year election cycle. In his McCutcheon dissent, Justice Stephen Breyer mildly suggested that our system should limit the political role of wealth in order to protect democracy itself. “The First Amendment advances not only the individual’s right to engage in political speech but also the public’s interest in preserving a democratic order in which collective speech matters,” he wrote.
Chief Justice John Roberts reacted with outrage. To the chief, the very idea of “collective speech” was an affront. In his majority opinion, he wrote that “the dissent’s ‘collective speech’ reflected in laws is of course the will of the majority and plainly can include laws that restrict free speech.” Sean McCutcheon and other one-percent wealthy donors may be the most powerful people in our society, but like the “lone pamphleteer... or street corner orator,” they are in grave danger, and need protection, from majority persecution.
The idea of a powerful but beleaguered minority popped up in an even stranger place—Justice Anthony Kennedy’s majority opinion in Town of Greece v. Galloway. To the untutored eye, Galloway looks like precisely the phenomenon Roberts warned against—the majority persecuting the minority, this time by trespassing on their religious rights. Recall the facts: In Greece, New York, the monthly town council meeting has opened with explicitly Christian prayers every month (except three) for the last 15 years. The clergy praying often invoke the divinity of Jesus, the necessity of repentance, or other disputed theological concepts; they often ask the audience to join in, bow their heads, or say “Amen.” The town’s explanation is that there are only Christian churches within the town’s boundaries. In other words, in Greece, the Christians are the majority, so that’s who gets to pray.
The plaintiffs didn’t want to stop the prayers. They wanted the list to be more inclusive, and they wanted the council to ask clergy to use “non-sectarian” language in order not to render non-Christians uncomfortable. You’d think a Court looking for minorities to protect would rush to the rescue of these dissenters, who are probably even lonelier than genuine lone pamphleteers. (In fact, one of the approved clergy had used the podium to dismiss the dissenters, saying contemptuously, “They are in the minority”).
Kennedy was alert to the danger of majority oppression. But he found it not in Town Superviser John Auberger, the official bully responsible for the prayers, and not in the overbearing clerics scorning the minority, but in the two plaintiffs, Susan Galloway and Linda Stephens. He explained that “[t]he principal audience for these invocations is not, indeed, the public but lawmakers themselves.” The prayers are “an opportunity for them to show who and what they are without denying the right to dissent by those who disagree.”
The dissenters had the brass to ask for non-sectarian prayer, making them the true oppressive majority. Adopting a “non-sectarian” policy, Kennedy said, would mean “permitting those religious words, and only those words, that are acceptable to the majority, even if they will exclude some.” It is the powerful who needed protection from the powerless.
So the wealthy and the Christian leaders of Greece, New York, are oppressed minorities, surrounded by a hostile majority. The Court will protect them.
What about, let’s say, racial minorities? Weirdly enough, them not so much. Look at the language in Schuette v. Coalition to Defend Affirmative Action, in which a statewide majority voted to outlaw any use of race in admissions to Michigan’s public universities. A majority vote on racial matters, one would think, presents at least the possibility of oppression. And a court that fears majorities would be alert for foul play, correct?
In a word, no. Again writing for the majority, Kennedy struck a different tone. Schuette is a judicial canticle to the right of majorities to have things their own way. “Freedom does not stop with individual rights,” he wrote. (Chief Justice Roberts did not protest this language.) To void the initiative “would be an unprecedented restriction on ... a fundamental right held not just by one person but by all in common.” Here indeed is a “collective right.” Not only that, it is “fundamental”—the strongest kind of constitutional right. The plaintiffs in Schuette were impudent even to question it: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
In two cases, then, the majority is wicked; in a third, it is virtuous. Is it a coincidence that the third case is one in which we can be pretty sure the majority was overwhelmingly white? Rich people and Christians are minorities, but minorities are not. The equal-protection clause has performed Sirsasana before our astonished eyes.
Much as we might wish it were not so, the conservative justices sometimes seem to live in the airless world of talk radio, Fox News, and the Murdoch press. Those media often warn that Christians and the rich face persecution. They also proclaim that, in the United States as it exists today, the old majority are strangers in a strange land. Bill O’Reilly expressed it baldly on election night 2012: “The demographics are changing. It’s not a traditional America anymore.”
We’re dealing here with unconscious attitudes, not deliberate bigotry. This conservative majority seems deeply anxious about what is happening to the country. At some level, they may feel that their role is to protect the real majority, the old majority, the Schuette majority, against a new majority—a rabble with unfamiliar names, speaking unfamiliar tongues, and worshiping unfamiliar gods.