In the conservative movement’s effort to find silver linings to yesterday’s Supreme Court decision, there’s another argument worth mentioning: the possibility that John Roberts was laying the groundwork not just for some hypothetical future restrictions on the federal government via a narrower interpretation of the Commerce and Spending clauses, but for some big bad news for progressives a lot nearer down the road. Here’s RCP’s Sean Trende on that scenario:
This is not the last battle to be fought on the Roberts Court. It might not even be the most significant. In the next term, for example, the court is being asked to reconsider its affirmative action jurisprudence. There are almost certainly five votes to overturn court rulings from a decade ago upholding some forms of affirmative action.
Following that, the court will face a variety of tough decisions. There are probably five votes to uproot the entire campaign finance system, a decision that would make Citizens United look like small fry. And there are probably five votes to invalidate Section 5 of the Voting Rights Act.
I don’t think invalidating the ACA would have affected the court’s legitimacy that much, at least outside of liberals in the legal academy. But taken as a whole, this series of decisions really might have irrevocably hurt the court’s reputation for independence.
But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues.
All told, it is easier for the conservative wing of the court to make some significant rulings in some other policy areas. In so doing, he actually made significant progress for judicial conservatives while ruling against conservative policy. And he might still see that policy repealed if Republicans win in the fall.
Trende doesn’t even mention what a Roberts Court might do with an additional conservative member, which is likely if Mitt Romney wins in November. Most obviously, Roe v. Wade would be in the crosshairs.
I’m not as impressed as some people are about the power of the “legitimacy” issue. It’s hard to imagine a decision more “delegitimizing” to the Court’s “reputation” than Bush v. Gore, but that didn’t inhibit its authors for a moment. So I don’t know if I buy Trende’s argument that Roberts may be softening us all up for a really audacious exercise in right-wing judicial activism once liberal and moderate Court-critics relax. But it’s a good reminder that yesterday’s decision hardly involved the last important case the Court will take up. It sometimes takes a while to figure out which decisions are truly “landmarks,” and which simply represent outliers today and footnotes tomorrow.