Health Care Ruling: Not a Liberal Victory

Will the decision be used in a way that could spell trouble for civil rights legislation?

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This action surprised many observers, because the Roberts court has not shied away from controversy. As has been well-documented, the court's conservative majority has reached to decide issues not presented for decision, revised well-settled precedents (pdf) and otherwise discarded the norms of judicial restraint (pdf) in service of the results it wants to reach.

More controversial cases await in the near future. Sitting on the court's present docket is a case challenging the University of Texas' use of race in its admissions process, giving the court an opportunity to overturn or modify its own relatively recent precedent upholding race-conscious university admissions.

In addition, the justices have sent clear signals that they may rule, in the near future, that a core provision of the Voting Rights Act is unconstitutional. Justice Thomas, never reticent about such things, is already on record with his opinion (pdf) that it is. Roberts' deft avoidance of political controversy in his Affordable Care Act decision makes it even more likely that he may feel freer to enter into controversial territory in revising apparently settled areas of civil rights law.

But those same considerations of politics give those who favor traditional civil rights approaches a strategy of their own. Recent work by both legal scholars and political scientists has established something that racial minorities have known for a long time: that the Supreme Court is influenced by the larger court of public opinion.

If one interpretation of the ACA decision is that the court hesitated before inserting itself into a national political dispute, then one response to the prospect that the justices may alter settled civil rights law is to organize politically, to make it clear that such change will once again place the court in the middle of a firestorm. The four justices who signed the conservative dissent may be unmoved by such considerations, but a statesmanlike chief justice just might be.

Kenneth W. Mack is a professor of law at Harvard Law School and the author of Representing the Race: The Creation of the Civil Rights Lawyer.

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