Beyond the Beltway: POTUS’ SCOTUS Reckoning

Brian and Garrett Fahy

5/2/2012 12:01:00 AM - Brian and Garrett Fahy

When a justice you nominated to the Supreme Court, who shares your view of proper constitutional interpretation, tells your Solicitor General that neither she nor the rest of the Court is buying your argument, you know you’re in trouble. Justice Sonia Sotomayor’s rebuke to Solicitor General Donald Verrilli during last week’s oral argument on Arizona’s immigration law was the most recent example of the Obama Administration’s continued difficulties before the nation’s highest court.

The media narrative is that Mr. Verrilli has either been outmatched by his opponent, in many cases former Solicitor General Paul Clement, or that the Court has been unusually (and unfairly) hostile to Mr. Verrilli’s arguments. This spin ignores the real issue. The true cause of the difficulties lies not with Mr. Verrilli’s rhetorical abilities, but with the indefensible positions he has advocated at the behest of the president he serves.

Recently, the Solicitor General’s office, which represents the federal government before the Supreme Court, has unsuccessfully represented the Obama Administration in a host of controversial cases: the campaign finance restrictions in the Citizens United case (the administration lost 5-4), the ministerial exception Hosanna Tabor (the administration lost 9-0), the challenges to the Patient Protection and Affordable Care Act (it looks likely the administration will lose at least in part), and, most recently, the administration’s challenge to S.B. 1070, Arizona’s controversial immigration law (ditto).

In view of these results, the Court apparently harbors no “empathy” for the Administration’s view of the Constitution. Further, while consistency is usually a commendable trait, consistency of this sort is not. It bespeaks an administration guided by policies in fundamental conflict with both the letter and spirit of the Constitution and the statutes and case law promulgated under it. Hosanna Tabor is probably the clearest example of this.

The question before the Court in Hosanna Tabor was whether the “ministerial exception” shielded a Lutheran church/school in Missouri from a discrimination and retaliation lawsuit brought by Obama’s Equal Opportunity Commission and a former teacher at the school. The ministerial exception provides that because religious employers are free to determine whom they choose to hire and fire in furtherance of their religious mission, they are (generally) exempt from federal anti-discrimination laws that otherwise apply to employment decisions.

In its briefings and at oral argument, the administration took the radical position that a religious institution’s freedom to hire and fire is grounded only in the First Amendment’s freedom of association clause, not the free exercise of religion clause. The Justices didn’t buy it. Addressing the government’s lawyer, Justice Elena Kagan (the other Obama-nominated Justice) said, “I too find it amazing, that you think…that neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.” Not surprisingly, the Court ruled 9-0 against the administration and held the suit was barred by the ministerial exception.

Every administration loses cases. However, the frequency with which the Court has rejected this administration’s arguments on such significant cases, and the unanimity in which it has done so, is striking. When the Bush administration lost a few War on Terror cases on sharply divided 5-4 decisions (e.g., Rasul, Boumediene), the legal media proclaimed that the Court was reining in an unbounded executive and maintaining the rule of law. That was nonsense; those decisions flatly ignored longstanding, settled precedent and have unsurprisingly proved unworkable in lower courts.

Now, however, in response to the Obama administration’s repeated defeats by solid margins, the media ignores the administration’s role in its own losses, and instead attributes the results to the lawyers, the election dynamics, or the Court itself. In other words, everything and everyone but Obama is to blame for the administration’s setbacks at the Court.

The media spin cannot hide what is apparent to those who follow the Court and the administration’s failures there: the Constitution does not abide President Obama’s progressive vision of this country and its Constitution. As the constitutional scholar-in-chief now seeks another term, discerning voters should ask themselves whether a record of such marked failure warrants his reelection, and the possibility of his nominating the next Justice. Following the Court’s lead, a unanimous no is appropriate.