The first decision of the Supreme Court’s new term tends to confirm my view that the Court does not have, as the media claim, conservative majority. It also tends to confirm my conclusion that Republican-nominated justices are unlikely to alter much.
In Mount Lemmon Fire District v. Guido, the Court applied a far-reaching federal statute to a tiny fire district. The district claimed it fit within the statute’s exemption for small employers. The Court ruled that the district was not exempt, and was subject to the same federal rules that applied to larger employers. The decision was written by Justice Ginsberg, and was unanimous: 8-0.
The precise question before the Court was not constitutional—it was how the statute was to be interpreted. In my view, the Court’s reading of the statute was probably correct. But on this point reasonable people could differ: four federal courts of appeal and the trial judge considering this case had read the measure the other way. Yet not a single Supreme Court justice supported the more “conservative” reading.
In addition, the context and wider setting of the case tells us a few things:
* Had a correct reading of the statute gone the other way, there is an excellent chance that the liberal activists on the court would nevertheless have tried to stretch it to cover the district (i.e., reach a liberal result)—particularly if they had support from the lower courts. But in this case, no justice tried to stretch it to exempt the district. That’s because there are no conservative activists on the Court. There have not been for many decades.
* The statute is based on an overly-expansive definition of congressional power under the Commerce Clause and Necessary and Proper Clause. It may also over-read congressional power under the Fourteenth Amendment. But no member of the court wrote a concurring opinion to point that out, including Justice Clarence Thomas.
* Apparently not even the fire district challenged the statute on constitutional grounds. Attorneys for the district knew that the justices the media mischaracterize as “conservative” in fact, faithfully apply the decisions of prior “progressive” courts. Because of the liberal jurisprudence built up during the 20th century, a Supreme Court justice committed to precedent necessarily reaches mostly liberal results.
Additional Note: Since I wrote this, commentator Ed Whelan has posted a very helpful article at National Review Online explaining why it is hard to change the federal appeals courts through the presidential appointment process. Many appointments don’t change much of anything because the retiring judge was already of the president’s philosophy or because the president’s philosophy already was already shared by a majority of the court. Mr. Whelan might have noted also that even Republican presidents avoid appointing outspoken originalists because of the fierce opposition they encounter from Senators who enjoy the unconstitutional power the courts have given them and do not want it cut back.
The bottom line is the same: the judicial appointment process, like other federal government procedures, is not the way to cure federal dysfunction.