The mistake that lawyers in both of these cases made was in assuming that, just because they were able to cite precedents supporting their position, that they had a chance of prevailing in the conservative Roberts court. In Town of Greece, the plaintiffs relied principally on Lee v. Weisman, where Justice Kennedy held, along with a left-leaning bloc of four other justices, that a public school could not open its graduation ceremony with a prayer. Lee, however, is an anomaly. Kennedy has spent his career railing against judicial “hostility” toward religion. Betting that he would hand down another such outlier is a dangerous game, especially because the court has historically shown far greater deference to legislative prayer sessions than it has to school-sponsored religious activity.
Likewise, in Schuette, the plaintiffs relied on a pair of Supreme Court decisions—the most recent of which is more than 30 years old—that prevent states from erecting certain obstacles to racial minorities seeking protection from discrimination. Both of these decisions, however, were handed down by much more liberal justices than the ones who dominate the Roberts court, and the more recent of these cases was a mere 5–4 decision when it was decided in 1982. One of the dissenters was Justice O’Connor.
In other words, in order to win their case, the plaintiffs’ attorneys in Schuette had to convince at least one of the five conservative justices, every one of whom is well to O’Connor’s right on issues of racial justice, to embrace a liberal view O’Connor herself rejected. As it turns out, they weren’t even able to convince all of the court’s more liberal members to embrace this view. Clinton-appointed Justice Stephen Breyer agreed with the conservatives that Michigan could ban affirmative action if its voters choose to do so.
Say all you want about the aspiration for judicial neutrality. The truth is that just because you think you have the law and precedent on your side, it doesn’t mean the justices will follow those precedents. This is a lesson that, frankly, liberals should have learned two years ago.
In the lead up to the Supreme Court challenge to the Affordable Care Act, the law’s supporters openly mocked the legal arguments against Obamacare—and with good reason. A leading conservative judge who received the Presidential Medal of Freedom from George W. Bush wrote that the case against Obamacare has no support “in either the text of the Constitution or Supreme Court precedent.” Another judge—one of Bush’s shortlisters for the Supreme Court—warned that a decision striking down health reform would be “a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.” An American Bar Association poll of Supreme Court experts taken shortly before the court heard the case found that 85 percent of these experts believed that Obamacare would be upheld.
But liberal mockery transformed into despair after the court heard arguments in this case. We now know that the conservative justices came within a hair of striking down the landmark health care law, regardless of the fact that neither the Constitution’s text nor the court’s own precedents supported such a result.
Liberal justices are hardly immune to this tendency to toy with doctrine in order to reach a desired result—if you don’t believe me, try reading Justice William Douglas’ opinion in the contraception case Griswold v. Connecticut with a straight face. But there is no one on the court today as progressive as Justice Douglas. And there are five justices who are eager to dismantle the precedents that Douglas and his fellow liberals handed down during the brief period when they controlled the Supreme Court. Many of them want to do even more than that. The case against Obamacare clashed with nearly 200 years of Supreme Court precedent. It also clashed with an opinion written by the Federalist Society stalwart Antonin Scalia.
It may sound cynical to urge liberals to avoid the Supreme Court until some of its members are replaced, but the court’s current majority has given lawyers plenty of reason to be cynical.