The Final Week of Judicial Activism

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.