AS THE media tries the Supreme Court for partisan bias, the main exhibit, inevitably, will be its verdict on Barack Obama’s health-care reforms. But the justices could reasonably point to their other decisions in the past week as proof of a more independent and unpredictable frame of mind than their critics admit. They handed the left a victory on immigration and the right a win on campaign finance. They have taken pity on juvenile criminals and those convicted of offences involving crack (liberal-sounding causes ever there were), while making it harder for labour unions to mount political campaigns and easier for corporations to challenge stiff fines (enough to warm conservative cockles). And they voted unanimously to knock back the Federal Communications Commission for its vague rules on indecency in broadcasting—something that could bring comfort to both ends of the political spectrum.
The most contentious subject after health care was immigration. The federal government had sued to block an Arizona law designed to make life difficult for illegal immigrants in the state. Among other things, the law requires police to check the status of anyone they stop whom they suspect of being in the country illegally, and makes it a state crime to be in breach of federal immigration rules. In theory, that would have allowed the state to lock up offenders the federal government was unable or unwilling to deal with. Four other states, all run by Republicans (Alabama, Georgia, Indiana and South Carolina), have adopted similar laws, in response to the federal government’s perceived laxity on the subject.
Mr Obama’s lawyers complained that Arizona was in effect attempting to set its own immigration policy, and thereby arrogating a power the constitution gives to the federal government. Arizona maintained that it was simply helping the feds to enforce their own rules. But the court demurred, holding that Arizona was interfering with federal discretion in such matters.
The court did let stand the part of the law requiring police to check on suspected illegal immigrants. But such checks will now be largely irrelevant, since the police will have no grounds to detain any offenders they catch in this way unless the federal government asks them to. Yet to the horror of chafing nativists, the federal government seems disinclined to pursue with much vigour any illegal immigrants except those who have also committed other crimes. It has also explicitly stated that it does not intend to deport at least one category of illegals: those brought to the United States as children.
Some advocates of a tougher line on illegal immigration tried to portray the decision to uphold the “show me your papers” clause as a great victory. But it is largely a symbolic one, and probably a pyrrhic one too. Democrats, after all, will still be able to use the law as a political rallying cry even though it has largely been defanged.
What is more, the court suggested that if the police checks singled out Hispanics or otherwise unduly inconvenienced law-abiding citizens, they might also have to be scrapped. (There have not been any checks yet, since the law has been suspended pending the judgment). Infuriated right-wingers, including Justice Antonin Scalia in a vociferous dissent, greeted all this as an assault on states’ rights.
The campaign-finance decision, in contrast, was an unvarnished defeat for the left. It has railed against the court’s decision in 2010 to allow companies and unions to spend unlimited amounts advocating the election or defeat of political candidates, in a case known as Citizens United. The only shred of comfort was the thought that more restrictive state laws might still apply to local elections. Indeed, Montana’s own highest court had ruled as such, saying that the state’s history of corporate bribery warranted a different approach. But the Supreme Court dashed that idea, summarily reversing the state court’s decision without even bothering to hold any hearings about it. (The alternative, it has to be said, would have seemed deeply inconsistent.) The judgment was only a paragraph long, suggesting that Democratic hopes that the court will suddenly develop second thoughts on campaign finance are not grounded in the evidence. As Justice Stephen Breyer put it in his succinct dissent, “I do not see a significant possibility of reconsideration.”