The Final Week of Judicial Activism

Last week, while upholding ObamaCare, the Supreme Court issued rulings in four other cases, overturning a total of 32 state and federal statutes. The significance of the other cases may have been lost in the glare of the ObamaCare decision. The other cases portray a Court quite ready to — in President Obama’s famous words — “somehow overturn a duly constituted and passed law.” Taken together, the four cases are a study in judicial activism.  


1. In United States v. Alvarez, the Court overturned a federal statute making it a crime to lie about receiving a Congressional Medal of Honor or similar military medal. Congress sought to stem an epidemic of false claims about such medals, concluding it was undermining the nation’s system of military honors. The statute penalized a person’s intentionally false statement about the medal — a blatant lie, with no inherent value as speech, reflecting no political or other point of view, with the true facts within the person’s own direct knowledge.

The Court held 6-3 that the statute violated the First Amendment. The majority noted that content-based restrictions on speech had been permitted “only for a few historic categories” of speech, “including [1] incitement, [2] obscenity, [3] defamation, [4] speech integral to criminal conduct, [5] so-called ‘fighting words,’ [6] child pornography, [7] fraud, [8] true threats, and [9] speech presenting some grave and imminent threat.” The Court ruled against adding lies about military honors to the list, suggesting the government could protect the integrity of medals in less burdensome ways, possibly through “a more finely tailored statute.”

Justice Breyer’s concurring opinion gave an example of such a statute. He noted “not all military awards are alike,” that “Congress might determine that some warrant greater protection that others,” and that perhaps it could “focus its coverage on lies [about medals] most likely to be harmful.” In his dissent, Justice Alito (joined by Justices Scalia and Thomas) succinctly illustrated the nature of such a ruling:


Justice Breyer also proposes narrowing the statute so that it covers a shorter list of military awards, but he does not provide a hint about where he thinks the line must be drawn. Perhaps he expects Congress to keep trying until it eventually passes a law that draws the line in just the right place.

2. In Miller v. Alabama, the Court by 5-4 overturned the statutes of 28 states and Congress providing mandatory life sentences for juvenile murderers. The record showed that 17 year olds commit a significant number of murders (averaging 424 per year in 2002-2010). The Court held a mandatory life sentence for someone under 18 was “cruel and unusual” punishment — although it was obviously substantially less cruel than the death penalty; could not reasonably be called “unusual” (since most states and the federal government imposed it); and hardly reflected an antiquated morality, since the statutes were recently enacted.

Chief Justice Roberts (joined by Justices Scalia, Thomas, and Alito) responded with a masterful dissent, noting that the majority did not rely on the Eighth Amendment’s text, but rather on the judicially created test of “evolving standards of decency that mark the progress of a maturing society.” Roberts asserted the majority did not point to any objective evidence of such evolving standards in the case before it, and had ruled instead based on their personal views about juvenile justice:


Mercy toward the guilty can be a form of decency, and a maturing society may abandon harsh punishments that it comes to view as unnecessary or unjust. But decency is not the same as leniency. A decent society protects the innocent from violence. A mature society may determine that this requires removing those guilty of the most heinous murders from its midst, both as protection for its other members and as a concrete expression of its standards of decency. As judges we have no basis for deciding that progress toward greater decency can move only in the direction of easing sanctions on the guilty.

The sentences of more than 2,000 people currently in prison must now be reviewed, and the Court made it clear how it expected that review to come out:  Writing for the Court, Justice Kagan said “we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” As Roberts noted, the Court had substituted its own judgment for that of most of the legislative bodies in the United States.

3. In  Arizona v. United States, by a 6-3 vote, the Court substantially gutted the Arizona immigration statute, whose stated purpose was to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States,” by making it a misdemeanor for such persons to work in Arizona and giving police new powers to help enforce the federal immigration law.


The Court held that most of the statute was preempted by federal immigration law. Justice Scalia, dissenting in part, wrote that the case involved a “stark issue”:

A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. … Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?

Justice Alito, also dissenting in part, wrote that the administration’s attack was quite remarkable:

The United States suggests that a state law may be pre-empted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement policies. Those priorities, however, are not law.

4. In American Tradition Partnership, Inc. v. Bullock, the Court, in an unsigned per curiam opinion, overturned a Montana statute that provided a “corporation may not make … an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” The Court noted that in Citizens United, it had struck down a similar federal law, holding that “political speech does not lose First Amendment protection simply because its source is a corporation.” Since Montana’s arguments had either already been rejected in Citizens United or failed to meaningfully distinguish that case, the Court issued its one-paragraph opinion disposing of the Montana law.


Justice Breyer along with Justices Ginsburg, Sotomayor, and Kagan, dissented on grounds they thought Citizens United was wrong and should be reconsidered based on “Montana’s experience, like considerable experience elsewhere since the Court’s decision,” which Justice Breyer thought “casts grave doubt” on Citizen’s United.

So the final score last week was 32-1, with only ObamaCare surviving. We do not know exactly what went on behind the scenes in that case, but there is something approaching a consensus that the majority opinion was a result-oriented piece of legal work that was hard to sustain on its legal merits. The “tax” argument upheld by the four liberal justices, joined (perhaps very belatedly) by Chief Justice Roberts, was “frankly … not a persuasive one” (Jeffrey Rosen in The New Republic), was a “twistification” whose “coherence” is easy to question (Jeffrey Toobin in The New Yorker), and was a “not very persuasive” opinion that was “illogical and overly clever.” (David Brooks on NPR, as quoted by John Fund).

Perhaps the ObamaCare decision was the result of the public campaign, spearheaded by President Obama, to threaten the Court with de-legitimization. A similar de-legitimization effort was initiated after the Court handed down Citizens United in 2010, starting with the president criticizing the justices sitting in front of him during his 2011 State of the Union address. Perhaps liberals thought that campaign could get one justice to switch his vote and overrule Citizens United when the American Tradition Partnership case arrived at the Court.


That effort did not succeed, but the one relating to ObamaCare may have been the key to how the Court ruled in that case. The chief justice has been roundly criticized for his weak ObamaCare opinion, but it bears emphasizing that it needed four other votes to prevail, and they were provided by the Court’s liberal bloc — a solid phalanx whose votes can be predicted with relative certainty even for a weak argument, and who deserve more attention than they have received for the results of last week.

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