Many big issue cases in the Supreme Court lately and several are expected to be decided within the next few days. Some, however, are looking at the Supreme Court more retrospectively. Ilya Shapiro, of the Cato Institute, a conservative organization, wrote an op-ed for Bloomberg that was published last week. Shapiro argues that President Obama has done particularly poorly with the Supreme Court in based on a string of recent defeats.
The theme of Shapiro’s argument seems to be that President Obama has been seeking the drastic expansion of executive power in recent years and the Supreme Court has been checking back against this through unanimous decisions. The article is strongly partisan and at times unfairly critical or misleading, but it does raise a couple of good questions: Has the current administration been losing big in the Supreme Court and if so, why?
The Obama administration has had somewhat of a mixed bag of wins and loses with the Supreme Court. The Affordable Care Act was upheld on a somewhat surprising 5-4 decision with Chief Justice Roberts writing for the majority. This was a significant win, although the decision was quite close.
In some cases, the administration obtained results that were more complicated than a simple win or loss. For instance, the government was able to successfully see portions of the Arizona immigration law struck down, although other portions of the law survived.
In other cases, the administration has indeed seen the Court push back against its attempt to strengthen executive power. But why are we seeing such a push back?
There are a few possibilities. First, it is not clear that the current administration is doing particularly worse than any of the past several in terms of wins at the Supreme Court. This is a difficult to quantify area, but there is certainly literature suggesting President Bush did poorly with the Court, although I’m not sure that I agree.
It could be that the president inevitably seeks to increase his power and the Supreme Court serves as a necessary check on this power. This would mean that when we see the Court pushing back against expanding executive power more generally, the Court is doing its job. I am not sure what effects partisan politics of the justices have on how they decide cases brought by the administration. While the court currently holds a minority of liberal members (4 of the 9 justices), expanding presidential power is, at least in modern politics, a more right-leaning concept. This means that a loss by the administration when it is trying to expand its power can be due to left-wing justices voting down a right-wind policy or right-wing justices voting down a left-wing administration.
Well, that or they might have decided some of the cases based on the merits and the strength of the legal arguments. How novel a concept.