Politics and judging are supposed to be done in different worlds, in America’s constitutional scheme. But when the public finds them mixing, that can make trouble — as it did when the Supreme Court decided Bush v. Gore, settling a presidential election in 2000, and when it decided the Citizens United v. Federal Election Commission last year, unleashing untold millions of corporate dollars on U.S. election campaigns.
Hard to believe, but the controversies that followed those decisions may be more than matched in the new year, as the Supreme Court works its way toward decisions on three major constitutional controversies, from which political fallout is absolutely predictable.
In November, the Justices promised a ruling on the constitutionality of the new federal health care law. Last week, they doubled the amount of high-visibility controversy they were willing to confront, taking on a constitutional dispute over drawing up new congressional election districts in Texas — with the potential for affecting which party controls the House of Representatives in the next Congress. And then, on Monday, they tripled the potential for political trouble by granting review of the constitutionality of Arizona’s path-marking law, “S.B. 1070,” that puts tight new controls on the everyday lives of undocumented immigrants living illegally in that state.
What those three controversies have most in common is this: every one of them involves the fundamental constitutional question of how governmental power is to be divided up between Washington and the states — an issue as old as the Founding, both in politics and in law. That is definitely one of the most prominent issues already unfolding for the 2012 elections, especially as the limit-the-government movement at least partly inspired by the “Tea Party” spreads in conservative political circles.
And what will make all of this more volatile is that all three of the Court’s coming decisions may be handed down even as the political calendar picks up momentum in the early months of 2012. The Texas redistricting case is on the fastest track, so it might be decided as early as February. Decisions in the other two may come down in June, as the Court’s current term winds down.
Whatever the Court decides, on each and all of these disputes, will surely get translated immediately into political controversy, and a potential backlash — from one side of the political spectrum or the other, and maybe even from the middle — against the Supreme Court.
The Justices, of course, did not plan it that way, and the public can be sure that the Justices will try their best not to take political consequences into account as they study and then rule upon the Constitution and what it means for health care regulation, congressional redistricting, and immigration controls. The lawyers, too, will try to confine the arguments they make to high constitutional principle.
Ordinarily, the Justices do not choose what cases or issues are brought to them, since the timing of most lawsuits is determined by the processes used in the lower courts. So, the arrival of these three controversies in such a close sequence was a coincidence. The health care controversy has been developing since President Obama signed the Affordable Care Act into law in March last year. The Texas redistricting case has been under way only since this past summer. Arizona’s S.B. 1070 was signed into law by Republican Gov. Jan Brewer in April last year.
The Justices did, though, have the option of turning aside all three of these disputes. But, of course, they opted not to take that easy way out.
And, as if these controversies were not heavy enough, the Court is expected to vote in coming weeks on whether it will hear a sequel to the Citizens United decision on campaign spending. This time the issue is whether foreign nationals living in the U.S. have a constitutional right to spend as they wish on American election campaigns. Also awaiting their initial reaction is a new test of the use of race in admission to public colleges and universities.
Moreover, making its way toward the Court, in a variety of contexts, is the issue over the constitutionality of banning marriage for same-sex couples. The timing of that in lower courts, however, seems more likely to put that issue on the Court’s doorstep for the term after the current one.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.