The Supreme Court undeniably tilted left this term. It was impossible not to note how the court that ruled that money was speech in 2010, significantly weakened the Obamacare contraception mandate in 2011 and eliminated Section IV of the VRA in 2013 and further weakened campaign finance in 2014 suddenly lurched left (upholding state subsidies and supporting gay marriage). But even though this might be the most liberal year of the Roberts court to date the court is actually far from liberal.
On Monday liberals got a reminder of this when the court upheld Oklahoma’s death penalty drug cocktail and much more importantly ruled in Michigan’s favor in Michigan vs. the EPA. Most of the attention this session focused on Obamacare and gay marriage but Michigan vs. EPA was far more consequential and shows the court’s strong conservative bent on regulatory issues in which the public has little input to shape.
Michigan vs. EPA’s background centers on the Clean Air Act under Obama. In early 2012 the EPA decided to start mandating that coal-fired power plants must limit their mercury emissions. However, the cost of the rule was not evaluated until early 2015 when 21 led Republican states and several coal companies sued over the rule. The EPA developed a cost formula that said it would cost the industry $9 billion a year but result in over $37 billion a year in health savings.
The court’s 5-4 ruling was damning to the EPA and to agencies who might try such a tactic in the future. Writing for the majority, Justice Antoin Scalia said, “EPA must consider cost — including cost of compliance — before deciding whether regulation is appropriate and necessary.” He further added, “EPA refused to consider whether the costs of its decision outweighed the benefits. The agency gave cost no thought at all, because it considered cost irrelevant to its initial decision to regulate. The EPA argued it had such power over due to the Clean Air Act and that there late cost calculations were enough. Obviously not. And here is the lesson for those worried about the court’s lurch to the left. It only goes so far.
A judicial philosophy and ideological split can be seen in the court today. You have three rock solid Constitutionalist judges in Scalia, Thomas and Alito. You have four liberals who give the government more deference than the Warren Court did and then you have Roberts and Kennedy. Both are interesting case studies in judicial philosophies. Kennedy has long been the swing vote on the court. A Reagan era appointee, Kennedy has carved out a niche as a center right justice on regulatory issues and the 1st Amendment, libertarian on social issues (abortion and gay marriage) and center-left on affirmative action issues.
Roberts in some ways mirrors Kennedy. He is as staunch a defender of the 1st Amendment as Kennedy, arguably more conservative on regulatory issues and certainly on social issues. But Robert’s distinction is his view of Congressional deference. For example, Kennedy wanted Obamacare’s Individual Mandate killed in 2012 despite the voters electing the people who passed the law. But Roberts did not. While Kennedy ruled with Roberts in Burwell last week, Roberts position never shifted as again he favored a law that was passed by elected officials. Yet, when it has come to ending DOMA, legalizing gay marriage, overturning Michigan’s ban on Affirmative Action through the courts and even the recent Arizona redistricting case he has sided with the conservative point of view. Robert’s seems to show more deference to voters than anything else (hence Congress). Kennedy is more of a mixed bag.
Hence the court has three blocs. A conservative bloc, a larger liberal bloc, and than a moderately conservative bloc strong on some issues and weaker on others. None of this however should disguise the fact this court remains conservative. Upholding Obamacare and enacting gay marriage cannot change the facts this court has given conservatives victories in campaign finance, contraception in Obamacare, gutting the VRA, upholding the Death Penalty and making sure regulatory agencies cannot just pick the cost of a rule out of a hat.
The Supreme Court remains conservative and that will come into play next year. The Court has agreed to hear arguments in UT-Austin’s Affirmative Action admissions policy, put a hold on TX’s stringent abortion rules until it can be heard by the full 5th CC Appeals Court and is also likely to hear a future case on Obamacare and the President’s Executive Action on immigration. In all cases, minus abortion, conservatives should feel like they are more likely to win than lose due to the make-up of the court and its continuous right leaning bent.
Addendum: Today, the court agreed to hear a case brought by 10 non-union public school teachers in CA who allege their being forced to pay union dues violates their free speech rights. Historically, more liberal courts have allowed such a thing as long as these dues are not used on political activities.