The Roberts Court: What Kind of Conservatives?

Levine Burke.jpg

Edmund Burke; drawing by David Levine

There can be no doubt that today’s Supreme Court is a confidently conservative institution. Last term it struck down a key provision of the fifty-year-old Voting Rights Act and reversed a lower-court decision upholding the University of Texas’s affirmative action plan. The term before, the Court came within a hair’s breadth of striking down the Affordable Care Act. And in 2010, in Citizens United v. Federal Election Commission, the Court reversed established precedent and rule that corporations have the right to spend unlimited amounts of money on political speech.

But eight years into Chief Justice John Roberts’ tenure, it still remains unclear just what kind of conservatives the Court’s majority justices are. The cases the Court will review in the 2013–2014 term, which begins this week, are likely to go some way toward answering this question. The Court has been invited to overrule precedents governing regulation of campaign finance, government support of religion, equal protection, abortion counseling, and the treaty power. In all of these cases, lawyers have argued that the Court can rule for them without questioning any prior precedent—what we might call conservatism with a lower-case “c.” But perhaps sensing a receptive audience, the lawyers in each case have also invited the Court to go further and overturn past precedents altogether—a dramatic step that would confirm a far more radical Court, or conservatism with a capital “C.”

The first of these bellwether cases, McCutcheon v. FEC, will be argued Tuesday. It challenges the constitutionality of longstanding federal limits on the total amount of money individuals can contribute to federal candidates and political action committees in a given year. The parties and several amici, including Senate Minority Leader Mitch McConnell, have urged the Court to jettison the central rationale of the Court’s jurisprudence on campaign finance—the distinction between contributions and expenditures. In Buckley v. Valeo, decided in 1976, the Court found that Congress could not restrict independent expenditures on political speech, but allowed limits on direct contributions to a particular candidate or party. The Court reasoned that the First Amendment offers less protection for contributions than for independent spending, because contributions to candidates are effectively “speech by proxy” and have greater potential for corruption. The Buckley Court therefore upheld both ”base” limits on how much one can contribute to a given candidate, and an “aggregate” limit on the total contributions one can make in a given year. The aggregate limit, the Court reasoned, was warranted to deter circumvention of the base limits.

The line between expenditures and contributions has been under attack for years. Critics argue that people should be free to give money to their chosen candidate rather than spend it independently. And, they maintain, expenditures and contributions don’t carry significantly different risks for corruption. But while the Court has invalidated many restrictions on spending on political speech since Buckley, it has struck down contribution limits only once, in a case in which the limits in question were judged to be so low that they could undermine the effectiveness of campaign speech.

The plaintiffs in McCutcheon, the Court’s new case, challenge only “aggregate” limits. They argue that as long as a person abides by “base” limits on contributions, Congress has no legitimate interest in limiting how much money he or she contributes in toto to multiple candidates. And they argue that rules adopted since Buckley that limit the amounts that individuals can contribute to political action committees and that the committees can in turn contribute to candidates, largely eliminate the risk of circumvention that was cited in Buckley to justify the aggregate limit on individual donors.

While offering the Court a narrow way to rule for them on the distinct issue of “aggregate” limits, however, the plaintiffs also urge the Court to rule that all limits on political contributions warrant the Court’s “strict scrutiny.” That is the same stringent standard of review that dooms virtually all limits on independent spending on political speech. If the Court adopts this approach—Conservative with a capital “C”—it could mark the end of virtually any limits on campaign spending.

In another closely watched case, Greece v. Galloway, the Court has been asked to overturn the prevailing test for assessing whether government-sponsored religious speech violates the Establishment Clause. That test, which was most famously advanced by Justice Sandra Day O’Connor in the 1980s, asks whether a reasonable observer would understand the government to be “endorsing” religion in a particular situation. Conservatives have long criticized this test as too hostile to religious expression in the public square, such as when it precludes town “crèche” displays at Christmas. They tend to prefer a narrower test, articulated by Justice Anthony Kennedy, that prohibits official coercion of religious observance, but otherwise tolerates official expression of religious views. Town of Greece v. Galloway asks whether the town board of Greece—a community in upstate New York near Rochester—violates the Establishment Clause when it opens its public board meetings with a prayer, very often a distinctly Christian prayer. If the Court upholds the practice, it can do so in one of two ways: it can rely on a narrow historical exception for “legislative prayer” that the Court announced thirty years ago, or it can abandon the “endorsement” test altogether. The latter approach, again Conservatism with a capital “C,” would have radical implications for government religious expression more generally.


In McCullen v. Coakley, the Court is reviewing the constitutionality of a buffer zone imposed by Massachusetts around clinics that provide abortions. Thirteen years ago, in Hill v. Colorado, the Court rejected a First Amendment challenge to a law that imposed an eight-foot buffer zone around all health care facilities. The Court emphasized that the law providing for the buffer zone in Colorado was neutral in regard to the content of speech, and merely restricted the place of speech. The challengers in McCullen argue that the Massachusetts buffer zone is significantly more problematic. Its much wider buffer zone, barring even presence within 35 feet of the facility, makes virtually any communication impossible. It applies only to abortion clinics, which challengers claim makes it content-based. And the challengers argue that the law favors pro-abortion speech by exempting clinic employees. The Court could well invalidate the Massachusetts law on any of these grounds without calling into question Hill v. Colorado. But the challengers have also argued that the Court should reverse Hill and find any such buffer zone unconstitutional, thereby invalidating far more modest efforts to protect abortion clinic patients and the medical professionals who treat them.

Affirmative action will also return to the Court’s docket this term, and here, too, the justices have been invited to overturn precedent. In 2006, Michigan voters adopted a constitutional amendment that prohibits affirmative action in public education, contracting, or employment. The federal court of appeals ruled that the amendment denied equal protection, by making it more difficult for minorities to obtain affirmative action programs. Before the amendment, minorities needed only to convince specific universities or local or state executive or legislative officials to adopt an affirmative action plan. Now they must amend the state’s constitution. In 1969 and 1982, the Court ruled that the Equal Protection Clause bars states from making it more difficult for minorities to obtain favorable action on a racial issue, for example, by passing a state constitutional amendment banning busing for desegregation. In Schuette v. Coalition to Defend Affirmative Action, the State of Michigan argues that it cannot violate equal protection to enact a state law prohibiting decisions based on race, and that its amendment differs from earlier “restructuring” cases, because the earlier cases invalidated laws that interfered with efforts to prohibit discrimination or remedy segregation. But the state also invites the Court to overturn the “political restructuring” doctrine altogether.

Finally, in the term’s most quirky case, Bond v. United States, the Court is revisiting Congress’s power to enact laws to implement treaties, a power that has been established since 1920. The case arises out of a lovers’ triangle in a Pennsylvania town. After learning that her husband was having an affair with another woman, Carol Bond tried to poison her rival. The crime at issue in Bond, an attempted murder of an entirely local character, would ordinarily be beyond the reach of federal law—most crime is a matter of state, not federal regulation. But federal prosecutors charged Bond with using a chemical weapon in violation of a statute enacted by Congress to implement the 1997 Chemical Weapons Convention—the international treaty now at issue in the conflict over Syrian President Bashar al-Assad’s alleged use of chemical weapons on his own population. According to the 1920 precedent, Congress has plenary authority to implement treaties, even where it otherwise would have no authority to legislate.

Bond’s lawyer argues that in the modern era, treaties have expanded dramatically from the relatively narrow scope they typically had in the 1920s, and that therefore unless there is some “federalism” limit to Congress’s power to legislate under treaties, state lawmaking power could be preempted altogether. Because of these differences, he maintains, the chemical weapons law should be interpreted narrowly or struck down without questioning the 1920 precedent. But here, too, he alternatively urges the Court to overturn the 1920 decision—Missouri v. Holland, a case concerning the migration of birds—if necessary, and amici have urged a radical restriction on Congress’s power to enact laws to implement treaties.

In all of these cases, the real question is not whether the conservatives will win, but how they will win. (It’s conceivable that the liberal side will prevail in one or more cases, but most court observers think the odds are against it.) Moreover, in most of the cases, Justice Kennedy, usually the swing vote, has already aligned himself with the strongly conservative view, so the outcome is likely to turn on Roberts. If the Chief Justice and his Court proves to be Conservative, the term could end with a radical revision of established precedent in a host of constitutional areas. If the Court is simply conservative, the status quo precedents will remain intact. We’ll know by June 2014.


Subscribe and save 50%!

Get immediate access to the current issue and over 25,000 articles from the archives, plus the NYR App.

Already a subscriber? Sign in