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Before We Pass Judgment on the Supreme Court's Progressive 2015...

Any lawyer knows that the time immediately following one’s graduation from law school is not a period of relaxation like that which follows other commencement ceremonies. That summer is often marked by crazed, frenzied preparation for the bar exam. But, as the Class of 2015 graduate recalls, June 25 to June 29, 2015 was the week bar review stood still.

Recent law school graduates ceased their bar exam studies to join more seasoned analysts and activists, awaiting with bated breath the outcomes of a slew of Supreme Court cases that would shape the ability of minority groups to access civil rights. Granted, whether you viewed the Court as protecting or infringing upon rights depended somewhat on which side of the aisle you fell; Senator Ted Cruz, for one, noted that the back-to-back judgments in the Affordable Care Act and gay marriage cases constituted “some of the darkest twenty-four hours in our nation’s history.”

The most well-known decisions, and certainly the ones to which Cruz was referring, are those about health care and marriage; but throughout the Supreme Court’s term it also announced progressive decisions in cases regarding fair housing, redistricting, employment discrimination, and the rights of criminal defendants. This liberal shift was shocking because this Court has widely been noted as one of the most conservative Supreme Courts since the 1930s. But those set to celebrate 2015 as the year a conservative court shuffled left would do well to remember verdicts are also delivered in the court of public opinion—which can, in turn, influence future decisions rendered by the Supreme Court itself.

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The Affordable Care Act, more commonly known as the pejorative ‘Obamacare,’ is no stranger to recoil. Since its passage, Affordable Care Act opponents in Congress have voted time and time again to fully repeal, or at least gut, the law. Twice now, the Act has survived challenges at the Supreme Court that, if successful, would have rendered it useless. In King v. Burwell, last summer’s challenge to the health care law, petitioners argued that the subsidies the Act provides to buy health insurance were unavailable to the millions of people who purchased health insurance through the online marketplace (or “exchange”) created by the federal government. The reasoning was that the ACA says subsidies are available to people who purchased their insurance on an exchange “established by the State,” and the federal government is not a “State.” Recognizing that the insurance scheme would be unworkable if that were the case, and this could not have been the intention of the drafters, the Court found that Congress intended subsidies to be available to all those who purchased on an exchange. On June 25, 2015, the Supreme Court upheld the Affordable Care Act, affirming the decision of the Fourth Circuit, which unanimously upheld the regulation. Millions of Americans who could not previously afford health care kept their insurance.

But opponents of the Act are showing no signs of defeat or fatigue. Republicans in Congress seek new measures to repeal the law faster than you can say Patient Protection and Affordable Care Act. And, unable to dismantle the Act entirely, some of its savvy critics have started playing the long game, chipping away at portions of the Act: another challenge to an aspect of the Affordable Care Act is being brought before the Supreme Court in a matter of months, and the Court will likely make a decision in June of 2016. The challenge targets the Act’s inclusion of reproductive health, and will be the second case to challenge the contraception mandate on religious exemption grounds.

Religious exemptions were also at the heart of what was perhaps 2015’s most famous Supreme Court case. On June 26, 2015, exactly two years after striking down a Defense of Marriage Act definition limiting marriage to opposite-sex couples, the Supreme Court held in Obergefell v. Hodges that marriage is a fundamental right and as such extended that right to same-sex couples. This decision came after decades of advocacy, simultaneously seeking to change laws, hearts, and minds.

Those set to celebrate 2015 as the year a conservative court shuffled left would do well to remember verdicts are also delivered in the court of public opinion. 

At the time of the decision, support for gay marriage seemed to be at an all-time high, but an Associated Press poll indicated that, shortly after the Supreme Court’s ruling, public support actually slightly declined. Moreover, persons polled were divided nearly evenly as to whether local officials with religious objections should be required to issue marriage licenses to same-sex couples, with a majority of pollsters saying that, if a conflict existed, it was more important for the government to protect religious rights than gay rights. Rowan, Kentucky County Clerk Kim Davis perceived such a conflict, and just two months after the Obergefell decision, her request to stay an order to issue marriage licenses to all couples was before the Supreme Court. More cases like hers, seeking religious exemptions to performing a governmental duty, are sure to follow. Obergefell v. Hodges occupies an interesting and complex position as a high water mark for gay rights advocacy in that it has inspired an urgent resistance among conservatives, but stands to inspire complacency among would-be allies to the gay community, ready to declare the right to marriage mission accomplished without yet addressing enforcement of that right, or tackling the many injustices faced by LGBT persons beyond marriage.

The third of what are often taken to be liberal victories won before the Court in Arizona State Legislature v. Arizona Independent Redistricting Commission involved voters taking back the reigns of their democracy: Fifteen years ago, in an effort to curb gerrymandering, the people of Arizona voted in a ballot initiative to transfer redistricting power from the state legislature to an independent commission. After around a decade, the legislature sued to get that power back, arguing that the Constitution placed it squarely within the purview of the legislature. Civil rights advocates had cause for concern for two primary reasons: 1) a decision for the legislature would have had huge implications for other states that use commissions to counter partisan (and often, racial) gerrymandering, and 2) still reeling from the loss of crucial protections for minority voters in Shelby v. Holder, advocates were on the lookout for another safeguard lost. The Supreme Court disagreed with the legislature and, on June 29, 2015, upheld the commission as constitutional.

But the Arizona Independent Redistricting Commission appeared before the Court again just six months later. Petitioners contend that by putting white voters into large Republican districts and voters of color into smaller Democratic districts, votes are being unconstitutionally diluted in Republican districts. The Supreme Court is expected to make a decision in that case in June 2016, and could create new hurdles for those seeking to protect voting rights for people of color.

This past summer was undeniably filled with historic left-leaning judicial decisions, but the Court is in a position to correct rightwards. People invested in seeing the progressive gains of the last Supreme Court term continued should not get too comfortable; their conservative opponents certainly aren’t.

Author:

Madiba Dennie