Friday, June 29, 2012
The 2011 Term and the Progressive Legal Agenda
With the ACA decision in the rearview mirror, I thought I'd take a quick stab at a more holistic reaction to the Supreme Court term that effectively came to a close yesterday. And at first blush, it certainly seems as if the October 2011 Term was a shockingly successful one for progressives--especially if one considers the bullets that were dodged. Maybe it's just that the bar is so low in light of the past few Terms, but here are a few highlights:
- In the headline-grabbing cases from this week, the Court came within one vote of invalidating the entire ACA; within two votes of leaving all of SB 1070 intact; and within one vote of allowing juvenile life without parole to persist. And yet, we wake up today with the ACA intact, SB 1070 largely gone, and juvenile life without parole a relic of a misbegotten past.
- In the same week, six Justices held that the First Amendment prevents the government from criminalizing harmless lying; and the Court dumped a case that many suspected would recognize new limits on Congress's power to empower private citizens to sue to enforce federal laws.
- Going back a few months, this was also the Term where the Court came within one vote of eviscerating Ex parte Young, only to punt; where 5-4 majorities produced surprisingly progressive decisions in three high-profile ineffective-assistance-of-counsel cases (to say nothing of the 7-2 outcome in Maples); and where the Court made a splashy, if limited, step into the Fourth Amendment consequences of 21st-century technology.
- And, lest we forget, the Court also found ways to duck huge constitutional questions in both FCC v. Fox and in the Texas redistricting case back in January, sidestepping the soon-to-be-squarely presented question about the continuing constitutionality of the preclearance regime created by section 5 of the Voting Rights Act.
I don't mean to oversell the point. I have to think that progressives certainly won't be happy with decisions like Knox v. SEIU; the double-jeopardy analysis in Blueford; Florence (the prison strip-search case); Coleman (the FMLA/Section 5 case); and a host of decisions (and decisions not to decide) that I'm sure I'm forgetting and/or underselling. And it also says everything about how low progressive expectations are that the Court ducking big decisions is, in many cases, tantamount to a progressive "victory." But even some of the "defeats" for progressives came on far narrower terms than they might have, such as the reasoning-less summary reversal in ATP v. Bullock (the Citizens United sequel)--which would almost certainly have looked much different on plenary review.
To be sure, there are storm clouds on the progressive legal horizon: the UT affirmative action case; Shelby County and the future of the VRA; the reargument in Kiobel; the Article III standing question in the constitutional challenge to the FISA Amendments Act; and a host of other cases in the food chain in which the Court's conservative majority is likely to assert itself at the expense of progressives. But that's next year. For now, I imagine most progressives will look back on the 2011 Term with a massive sigh of relief about what could've been, but wasn't.
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Just a couple small tweaks, Steve.
a) Juvenile LWOP is definitely still a possibility, but it can't be required by the state. For reasons I'll explore in a separate post, I'll offer some thoughts on whether this is such a great outcome.
b) harmless lying is still criminalizable. The SCT didn't strike down 1001 laws, and there's no requirement of harm there. So they have some 'splaining to do.
Posted by: Dan Markel | Jun 29, 2012 11:59:07 AM
Dan: Indeed! Thanks for flagging that... I look forward to your thoughts.
Posted by: Steve Vladeck | Jun 29, 2012 12:01:12 PM
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