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Adam Winkler


The Anti-Obama Court

Posted: 06/22/2012 2:01 pm

People are on the edge of their seats waiting for the Supreme Court to rule on President Obama's health care reform law. But no matter what happens with that law, it is clear already that the Roberts Court is unusually hostile to the Obama administration. This term, the justices have ruled against Obama in a remarkably high number of cases.

This is the year of the Supreme Court's Obama smack down.

Traditionally, the Court gives considerable deference to the views of the president, regardless of his political persuasion. The executive is, after all, a co-equal branch of government. The solicitor general of the United States, the federal government's chief advocate before the high court, has long been called the "tenth justice" because he is so influential with the Court.

This Court, however, does not seem to defer to Obama's solicitor general.

Studies show that, in the past, the solicitor general wins most of his cases. When he is a party to a Supreme Court case, the solicitor general wins nearly 70 percent of the time. This term that number looks to flip. If the Court rules against Obama in the health care case and the other major decision yet to come down -- on Arizona's controversial immigration law -- the federal government will have lost nearly 65 percent of its cases.

To date, the Court has ruled against the Obama administration in over half the cases in which the federal government was a named party. The justices rejected Obama's positions in important cases dealing with GPS surveillance of vehicles; the scope of religious institutions' exemption from employment discrimination law; the formatting of passports; and procedures under the Clean Water Act, among others.

Immigration is an area where courts usually give wide leeway to the president, who is charged with enforcing federal immigration law. In addition to last year's case rejecting the administration's view that Arizona could not take away a business's license for hiring undocumented workers, the justices gave the administration's argument in this year's Arizona immigration case an icy reception. And earlier this term, the justices ruled that a decision by the Obama's Board of Immigration Appeals was "arbitrary and capricious" and "irrational."

This Court's anti-Obama leanings even led to victories for Native American tribes, who over the course of American history have won precious few cases against the federal government.

Of course, the administration won a few cases too, especially when it wasn't a party to the case but only an amicus supporting one side in a dispute. One of these cases involved Secret Service agents who arrested a protestor who made anti-war statements to then-Vice President Dick Cheney. When the case is really about the actions of the Bush administration, perhaps the Court isn't as hostile to Obama's lawyers.

While conservatives were in the majority in nearly all of the Obama smack downs, the moderate justices also found cause to disagree with the administration in some cases. In oral argument over the Arizona immigration law, Justice Sotomayor, an Obama appointee, surprised Donald Verrilli, the solicitor general, by telling him his argument was "not selling very well."

Maybe it's the bad economy, but this term almost none of administration's wares sold well.

If the Supreme Court upholds Obama's health care law, perhaps this larger pattern will go unnoticed. But trends are not defined by a single controversy. The hostility of this Court to the Obama administration is suggested by the string of losses the justices handed the president already.

What accounts for the Court's unusually frequent rejection of the Obama administration? Some people will undoubtedly lay the blame on the administration for pushing arguments that, in their view, show insufficient respect for the limits on governmental power.

But this year's Court is hardly one defined by vigorous defense of individual freedoms. State and municipal governments, which usually fare poorly at the Supreme Court, won numerous cases on liberty issues, from unequal tax burdens on similarly situated taxpayers and criminal interrogation of prisoners against their wishes, to strip searches of people arrested on minor offenses and double jeopardy.

In case after case, liberty lost -- when it was a state or municipal government seeking to invade it.

This is not a liberty-loving Court. It is an anti-Obama Court.

(An earlier version of this article incorrectly identified one case as a loss for the Solicitor General. This has been corrected.)


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01:33 PM on 06/25/2012
Prof Winkler, perhaps the Court is unimpressed with the Solicitor General and Atty Gen Holder, rather than the President?

I'd like your thoughts, if you see this.
11:43 AM on 06/25/2012
I enjoy your columns, but do I see a little bit of "conspiracy theory" creeping in. How many Obama appointees voted against the government in the cases you cite? Hosanna-Tabor was 9-0. Sotomayor and Kagan are anti-Obama?
10:35 PM on 06/24/2012
If I were on the court and had listened to this particular Solicitor General, I would count on my own knowledge of the Affordable Health Care Act to make a decision. It seems to me, he is less than stellar.
Retired Manager Mechanical Operations
10:20 PM on 06/24/2012
When Conservatives win it is an anti Obama court. If the Liberals win it's justice. Is it just possible that Obama is wrong, that he has violated the Constitution? I realize for Liberals that is a huge pill to swallow, but in reality it is actually possible.
09:24 PM on 06/24/2012
funny how pro-constitution is thought of as anti-Obama
Dual masters in dominance and modesty
08:45 PM on 06/24/2012
anti-obama... aka anti-socialism

Romney 2012
06:01 PM on 06/25/2012
Americangangster I'll vote for that!

Fanned and faved
old & decrepit
07:27 PM on 06/24/2012
Republicans, keeping millions unemployed to throw one man out of a job with
the help of the Supreme Court. It's a shame but no surprise.

07:26 PM on 06/24/2012
The court is not Anti-Obama. The court is pro-Constitution. When Obama starts using his brain, maybe cracks open one of his old constitutional law books and starts promoting legislation with that as a foundation he and the Democrats will stop getting shot down.
07:59 PM on 06/24/2012
Yes! Obama is literally drunk with power. People simply aren't paying attention. The man has asserted that he has the right to kill anyone, even a US citizen, anywhere, at any time, on his sole order. He's also asserted a new basis for which to start wars--if we think a country is planning to try and get weapons we don't want them to have. That's so far past the "Bush doctrine" as to be an entirely new realm of warmongering.

Barack Obama thinks "if I want to do something, then nothing can stop me, even if it means killing lots of people." Oh, yes, he does. He's off the charts. He's a madman--I'm not kidding--he has NO respect for the rule of law.
08:07 PM on 06/24/2012
BS! The Supreme Court has become an extension of the Republican Party. It has nothing to do with the Constitution. It is the most partisan Court inserted in the most partisan political environment I've seen in my lifetime.
10:36 PM on 06/24/2012
You perceive it as an extension of the Republican party because the Republican party is pro-constitution. The duty of the Supreme court is to uphold the Constitution. Democrats and people like you Marchant2 are just making excuses because your ideals and progressive agenda will never work in this country as long as the constitution is upheld. Has nothing in reality to do with Democrat or Republicans on the Supreme court and everything to do with justices who will do their duty to uphold their oaths, and those willing to betray themselves and this country and rule against the constitution. Your enemy Marchant2 is the constitution itself so if you want to be mad at something, be mad as the founding fathers who wrote it.
supporting those that won't support themselves
06:25 PM on 06/24/2012
The courts responsibility is to rule on the constitutionality of the laws that Congress pass', and the actions of the Executive branch. Nothing more, nothing less. If the court has ruled against the POTUS' agenda, the agenda is unconstitutional.
04:21 PM on 06/24/2012
Nice when people in the media figure out what half of the U.S. population already knew. Radical right wing court makes room for Republican fascists. The big surprise would be for the Supreme Court to support civil rights instead of taking them away. Thank you, Supreme Court, for putting a stake through the heart of Democracy.
04:07 PM on 06/24/2012
A Proud Liberal Democrat.
03:08 PM on 06/24/2012
If you read part of the opinion by Justice Kennedy of the SCOTUS regarding Citizens United, it is quite clear that the right wing of this Court is out of touch with the reality of our civilization. They have been sheltered by the secretive Judicial Branch for a very long time.

What's needed on this Court - and in the Congress as well - are fewer numbers of lawyers.
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01:40 PM on 06/25/2012
I didn't always agree with Justice Byron Scott, but I think his career history pre-bench as a US Marshal gave him striking real-world insights, especially as they related to civil rights and racial discrimination. He was given an education in what a government and society could do if rights were not protected.
01:56 PM on 06/24/2012
If PBO wanted things to go his way he should have passed some Constitutional bills, but recent actions have shown that he has nothing but contempt for the document.
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01:37 PM on 06/25/2012
Ohyeah, c'mon. Do you really want me to point out the problems with your post? Or are you just trying to agitate the libs?
03:11 PM on 06/25/2012
I would love for you to do so. There is nothing better than a liberal talking about things they have no concept of... facts.
I'll never do it again, I promise.
01:17 PM on 06/24/2012
I think the pendulum of change is reaching it's conservative limit. Conservatives hated FDR through LBJ democrats and the SCOTUS of those times. We liberals hated W and now hate the current SCOTUS. I guess that's natural, as long as the pendulum keeps oscillating.
12:54 PM on 06/24/2012
We the People have had quite enough of the perversion of law that allows for robbing, abuse and denial of equal protection under the law and denial due of process; the US Courts are a National DISGRACE. The Supreme Court of the US has absolutely no intent of exercising its supervisory power. On May 21st the high court invalidated 3 Congressional Acts including the ADA, Magistrate and Crime Victims and also invalidated the 1st and 5th Amendments of the Constitution of the United States; they denied a petition that showed well documented unquestionable corruption in the court rendered records and dockets themselves. Dishonest Service Fraud applies to all and the First Circuit does not get to take a filing fee and then block legitimate adjudication. See the Petition http://scr.bi/L1h9yQ Either the Justices need to be INVESTIGATED and IMPEACHED if warranted or the petition fell to corruption and was never distributed which calls for the investigation of the Clerk of the Court and all the law clerks that worked the 2011 term. The Federal Judiciary’s unchecked criminal behavior leaves us with an unbalanced government and that means things are really, really bad considering the mess within the other two branches. If the Supreme Court will not ACT we need to call for a closing of these lower courts; the tax payer should not have to support their own oppression and tyranny, and certainly not criminal acts.