Everyone is rightly buzzing about the Supreme Court's Obamacare decision today (for my take, you'll have to listen to Richard Epstein and me on today's episode of the Ricochet Podcast and tomorrow's installment of Law Talk). But let's take a moment to look at the cases you may have missed in the shuffle and what they may say about a broader trend in the court.
The Court's decisions earlier this week should put to bed the idea that we are living in an era of conservative jurisprudence. In the Arizona immigration case, the Supreme Court struck down most of a state's effort to enforce federal legal standards using its own mechanisms of government. Conservatives generally favor a more robust role for states in our federal system, but here Justice Kennedy and Chief Justice Roberts joined the four liberal Justices to strike down Arizona legislation forbidding illegal aliens from employment.
In the juvenile sentencing case, Justice Kennedy joined the four liberal Justices in striking down a mandatory life sentence without parole for juveniles convicted of certain crimes, even though a high number of states possess such penalties.Here, the Court engaged in the most egregious policymaking, reading the due process clause -- which has never been thought to extend to the imposition of life sentences -- to give it the right to measure whether commonly imposed criminal sentences meets its own mysterious definition of fairness.
Here, despite a 5-4 majority of Justices appointed by Republican presidents, we have a Court reaching decisions that would have warmed the hearts of the Justices of the Warren Court. As I argued in the Wall Street Journal after the Obamacare oral arguments, the Republican revolution in the courts has been something of a bust. Since 1968, Republicans have held the Presidency for 28 years and Democrats for 16. Republicans should have had roughly a 2-1 advantage in picks for the Supreme Court and the lower courts. But when conservatives win on the Court, it is often just by 5-4, and they by no means win the majority of cases as the two examples above demonstrate.
If Obama wins a second term, the decades of Republican effort to change the direction of the courts will end. The four Democrat justices on the Court vote as a block. Three of the Justices will be 80 or older by the end of the next Presidential term. A second-term Obama administration will likely pick two or three new Justices, throwing the Court into a clear liberal majority for many years, one that shows no intention of respecting precedent established under the Rehnquist or Roberts Courts.