Feldman: Politics, timing & the high court

With just a few more days left on

With just a few more days left on the Supreme Court's calendar to announce opinions, the five most important cases of the term all remain undecided. (Credit: AP Photo)

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For court watchers, the drama is becoming unbearable. With just a few more days left on the Supreme Court's calendar to announce opinions, the five most important cases of the term all remain undecided.

The club of Supreme Court devotees (OK, junkies) likes to think of the first Monday in October as opening day, and the last Monday in June as game seven of the World Series. But many years, the series is a dud. Most of the cases are technical and unexciting, they enter the casebooks with little fanfare, and the public barely notices. This year will be the exception that proves the rule.

The action will happen very fast, and the images on your screen will be blurry. Some cases that would in other years be headliners will disappear almost entirely. So it's worth taking a minute to look at the politics of the crucial cases -- and to ask why the Supreme Court has chosen to stack them all up at the end of the term, instead of announcing the outcomes over time so that each decision could get the attention it deserves.


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The big kahuna, of course, is President Barack Obama's Affordable Care Act. Like it or not, this will be the most significant political case decided since Bush v. Gore in 2000. The court won't decide who wins the election, but it will have a tremendous effect on the race. By agreeing to hear the case, at the Obama administration's request, the court guaranteed that it would be ruling on the constitutionality of Obama's most important policy achievement the summer before he is up for re-election.

More than a century ago, the great Chicago humorist Finley Peter Dunne had his comic character Mr. Dooley observe that the Constitution may or may not follow the flag, but the Supreme Court follows the election returns. Dunne was commenting on the court's decision not to extend full constitutional rights to the people of Puerto Rico, Guam and the Philippines after their annexation in the Spanish-American War. President William McKinley's re-election in 1900 demonstrated public support for the idea of becoming a global empire, and the court was not prepared to reverse it.

Today, the court has done Mr. Dooley one better: It doesn't follow the election returns; it tries to lead them. No wonder, then, that a recent poll suggests that public confidence in the court has never been lower in the modern era, with just 44 percent of respondents approving of its performance.

The second huge case, reviewing whether Arizona's immigration law impinges on the federal government's authority to make immigration policy, is equally political. The Obama administration sought to depoliticize the case by declining to argue that Arizona's stop-and-question policy (sometimes called "papers, please") would surely discriminate on the basis of race.

But everyone can still see that the case effectively turns on whether the Republican stalwart state of Arizona is right on tougher immigration enforcement or whether the more liberal Obama administration is. (Never mind that the Obama administration has deported illegal immigrants at a vastly higher rate than that of his predecessor, the Republican George W. Bush.) This decision, too, will have significant political impact, especially if Mitt Romney decides he can't win Latino voters and therefore turns to immigration in order to encourage Republican turnout.

Health care and immigration will probably overshadow the Supreme Court's return to campaign finance, but here, too, the political consequences are major. The court will have to decide whether a Montana law essentially barring corporate campaign spending violates its holding in Citizens United of 2010, the case that gave us the Super PACs. If the court strikes down the century-old law, then it's official: The Super PACs are here to stay and the justices will have embraced their own legacy as the ones who changed forever the rules of campaign finance in America.

If, on the other hand, the court draws back from the brink, for example by holding such regulation is allowed under the distinctive circumstances in Montana (where the mining companies and other business interests all but controlled politics before the law was enacted), then the door is open for a legislative end run around Citizens United. No issue could be more significant to the way electoral politics will really work in the United States for the foreseeable future.

Two more cases also matter a lot but will surely fall below the radar. In one, the court must decide whether it counts as cruel and unusual punishment to sentence someone to life imprisonment without parole for a murder he committed when he was 14 years old. To human-rights advocates, this might be the most important case of the term -- but it will probably get less coverage in the United States than in Europe, where the very thought seems barbaric.

The court will also decide whether Congress can make it a crime to lie about your military service, even if you stand to gain nothing tangible. This intriguing case goes to the essence of free speech. But it will barely register against the backdrop of the end of term.

So why does the court come out with this flood of opinions every summer, in which meaningful and interesting cases often get buried on the back pages of the newspapers? Part of the answer is human nature: Hard decisions get delayed because procrastination is a signal of thoughtfulness. Another part is practical. A hard case means more back-and-forth among the justices, which requires more time. And the justices, like anyone else, like to be in the headlines if it means the world is noticing the importance of their work.

That said, the court would have done the nation a service by stringing out these five decisions over the course of June, guaranteeing that each got the scrutiny it deserved. That it chose not to suggests the court may be a little worried about a world in which its approval rating stands at 44 percent and some three-quarters of respondents believe (correctly, I'd say) that a justice's personal opinion matters in deciding important cases.

This summer, the court may have overplayed its hand. It will be too much in the sun. And that way, as Hamlet noted, lies nothing but trouble.

Noah Feldman is a law professor at Harvard University and the author of "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices." This is from Bloomberg View.

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