Corporate Accountability

Supreme Court conservatives are playing a long game

By David Savage

The Supreme Court led by Chief Justice John G. Roberts Jr. showed again this year that it is playing a long game, writing opinions that move the law in small but steady steps in a conservative direction..


At first glance, many of its decisions appear modest, and the justices themselves downplayed them as narrow and tightly targeted. But they also set the stage for broader rulings, and liberals voiced concern about their long-term impact.


Many rely on well-established rights, such as freedom of speech and free exercise of religion, but extend those rights for the first time to corporations, wealthy donors and conservatives who bristle at what they view as liberal government mandates, from paying union fees to offering birth control to female workers.


Four of the most significant rulings — on campaign finance, public prayer, religious freedom and union fees — yielded the same 5-4 split. They pitted the Republican appointees, Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr., against the dissenting Democratic appointees, Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.


Not all of the rulings were conservative. Roberts spoke for a unanimous court in extending the right to personal privacy to smartphones, and he joined the majority in two rulings that upheld the Obama administration’s environmental regulations limiting air pollution and greenhouse gases.


But on the big issues where justices were divided, Roberts and the conservatives usually held sway.


In April, Roberts spoke for a 5-4 majority that struck down part of the federal election law that limited how much in total a single donor may give to various candidates for Congress and their parties during an election cycle.


By itself, such a decision might not seem dramatic. The Republican National Committee and Shaun McCutcheon, a wealthy donor from Alabama, challenged the limit on free-speech grounds. They argued McCutcheon simply wanted to give up to $2,000 to about 28 candidates but was blocked by the aggregate spending limits.


But the decision followed the court’s controversial 2010 Citizens United ruling, which allowed corporations and unions to spend unlimited amounts on independent political campaigns.


In his opinion this term, Roberts cast doubt on the remaining limits on campaign donations, saying a wealthy donor has a right to seek influence with an officeholder as long as the two do not make an actual deal.


“The government may not seek to limit the appearance of mere influence or access,” he wrote.


He also noted that “the 1st Amendment requires us to err on the side of protecting political speech.”


Election law experts say the opinion threatens to doom remaining campaign-finance laws that seek to limit the power of big money in politics. 


“That line was a dramatic shift from the existing doctrine,” said Elizabeth Wydra, counsel for the Constitutional Accountability Center in Washington, a progressive group. “It limits the government interest, frankly, to bribery and nothing more.”


This term also saw an important shift on religion. In one case, the court said local officials may sponsor explicitly Christian prayers to open public meetings. In another, they said devout Christians who run a closely held corporation have a right to a religious exemption from part of a federal law.


Prior to this year, the court had upheld ceremonial invocations but warned that government officials may not favor or endorse a particular religion. The court dropped such warnings in a decision in May upholding an upstate New York town’s practice of opening its public meetings with a prayer by a Christian minister, despite the complaints of non-Christian residents.


The opinion by Kennedy said this practice does not violate the 1st Amendment’s ban on an “establishment of religion.” Moreover, he said the 1st Amendment shield for free speech allows public officials to opt for Christian prayers only. “The 1st Amendment is not a majority rule,” he said.


“Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy,” he wrote.


On the term’s last day, the same 5-4 majority strengthened the religious rights of business owners.


When the owners of the Hobby Lobby chain of craft stores learned they would be required by the Obama administration to provide insurance coverage for all contraceptives, including “morning-after” pills and intrauterine devices, they sued. They relied on a 1993 law that said the government “shall not substantially burden a person’s exercise of religion” unless it has a “compelling” need to do so.


In its 5-4 decision, the court decided that Hobby Lobby Stores qualified as a “person” and that providing the full range of contraceptives put a “substantial burden” on its exercise of religion.


Alito and the conservative majority suggested the ruling would have only a limited impact, but Ginsburg in dissent warned that giving religious exemptions to employers would have a “startling breadth.”


The fight flared again Thursday when the majority, including Breyer, agreed to give Wheaton College in Illinois a temporary religious exemption from complying with the birth control mandate.


Because it is a religiously affiliated college, Wheaton was already exempted from having to provide any of the disputed contraceptives for its female employees, in accordance with a compromise offered by the Obama administration.


But the college and other religious nonprofits are challenging that compromise, refusing even to sign a form stating their religious objection — as required under the compromise — because doing so would authorize their insurance carriers to step in and provide the coverage.


In an unsigned order, the court said only that Wheaton need not comply until its legal case is resolved. But Sotomayor, Ginsburg and Kagan filed an angry dissent, saying the majority had already broadened the Hobby Lobby decision to shield employers who are not required to pay for contraceptives.


In one of its final decisions this term, the court sent a warning to public employee unions that rely on “fair share” fees, which employees in some states are required to pay, even if they oppose the union. Such mandatory fees were upheld by the court in 1977.


Although the court refrained from outlawing “fair share” fees in its latest ruling, the majority said these mandatory fees appear to violate the 1st Amendment because they “compel the endorsement of ideas.” They ruled only that certain unionized home care workers in Illinois would not be forced to pay them because they are not true public employees.


The court’s opinion lays down the basis for a future constitutional attack on similar fees paid by school teachers, transit workers and other public employees. A pending suit against the California Teachers Assn. brought by antiunion lawyers could send the issue back to the Supreme Court in a year or two.


If so, it would allow the conservative justices to use their own recent precedent as the foundation for a broader ruling, a strategy that legal experts say the Roberts court has used effectively before.


In 2009, the court was facing a major challenge to the historic Voting Rights Act of 1965 brought by a small water district in Texas that challenged a provision aimed at preventing Southern states from discriminating against minority voters.


Roberts wrote a broad opinion criticizing the provision — which required some states to receive federal preapproval to amend their voting laws — as hopelessly outdated, but decided narrowly that the water district could be exempted from the law. The court’s liberals, relieved that the provision was not struck down, joined his opinion.


But last year in a separate case, Roberts used that ruling as a precedent to strike down that part of the 1965 law. The four liberals sharply dissented.


Perhaps mindful of that experience, none of the liberals signed on to the court’s four major rulings this year. Brushing aside conservatives’ attempts to portray the rulings as narrow, they instead wrote dissents warning of what could come next.

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