Abstract
Isaac Unah and Ryan Williams evaluate the Obama administration and its relations with the US Supreme Court. With the advice and consent of the US Senate, President Obama appointed two justices for the Supreme Court and several lower federal court judges. This chapter examined Obama’s legacy in the Supreme Court and the critical cases (e.g., campaign finance, health care, voting rights, same-sex marriage) that faced the Roberts Court. They argue that Obama’s presidency was transformative for the institution and politics of the Court. President Obama experienced both successes and failures in attempting to shape the Court in his own image, but he largely succeeded in using the Supreme Court to secure some of his biggest victories as president. At the end of the tenure, Obama was only partially successful in slowing down the aggressive rightward shift of the Court. Obama’s two relatively liberal/progressive-minded appointees, Justices Sonia Sotomayor and Elena Kagan are a counterweight to the current Court’s conservative majority. With the help of Sotomayor and Kagan, the liberal minority has slowed the Court from moving dramatically to the Right. The chapter makes that conclusion after examining the voting behavior of the Obama appointed justices compared to the justices they replaced on the Bench.
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Notes
- 1.
Bureau of Labor Statistics, U.S. Department of Labor, The Economics Daily, Unemployment in December 2008 on the Internet at https://www.bls.gov/opub/ted/2009/jan/wk2/art02.htm (visited May 21, 2018).
- 2.
Barack Obama: “Keynote Address at the 2004 Democratic National Convention,” July 27, 2004. Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.washingtonpost.com/wp-dyn/articles/A19751-2004Jul27.html
- 3.
Justice Thurgood Marshall’s dissent in Rodriquez echoes Obama’s sentiments about the harshness of the Court’s decision:
The majority’s holding can only be seen as a retreat from our historic commitment to equality of educational opportunity. In my judgment, the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination of this sort. (San Antonio School District v. Rodriguez 1973)
- 4.
Republicans controlled the House of Representatives for the final six years of Obama’s presidency and gained majority control of the Senate following the 2014 midterm elections.
- 5.
Information obtained from http://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies
- 6.
The blue slip process is an institutional norm used by the Senate Judiciary Committee to solicit the preferences of a senator when a lower court federal judge is nominated in that senator’s home state. Traditionally, if a home state senator did not return her blue slip signaling her support of the nominee, the nominee was not considered and the nomination was essentially dead. See Slotnick et al. (2017) and Binder and Maltzman (2009).
- 7.
Numbers derived from Slotnick et al. (2017).
- 8.
President Barack Obama’s State of the Union Address, January 28, 2014. Online by White House Office of the Press Secretary. https://obamawhitehouse.archives.gov/the-press-office/2014/01/28/president-barack-obamas-state-union-address
- 9.
- 10.
The Biden Rule is strikingly like the Thurmond Rule, named after former Senate Judiciary Committee Chair Strom Thurmond. Although not a formal rule of the Senate, it is often invoked by senators who wish to deny presidential appointments to federal courts in the months preceding a presidential election (Binder 2012).
- 11.
Note that when Senator Joe Biden made his speech, there was no vacancy on the Court and no nominee was under consideration by the Senate.
- 12.
For an extended discussion of the history of the nuclear option, see Smith (2014).
- 13.
Souter was appointed by George Bush to fill the vacancy created by the retirement of Justice William Brennan.
- 14.
Based on a two-sample test of proportions conducted using Stata 13. The p-value is 0.015.
- 15.
Spaeth identified 14 total issue areas but only 11 had sufficient cases to permit analysis.
- 16.
See “A Conversation with U.S. Supreme Court Justice Elena Kagan” Harvard Law School, September 16, 2016. https://www.youtube.com/watch?v=zxITcqE0orM
- 17.
As the newest member of the Court, Justice Kagan heads the Cafeteria Committee. At a speech at Harvard Law School, she spoke about being thanked profusely by law clerks for introducing a yogurt machine to the Court. She apparently also improved the quality of the coffee (ibid).
- 18.
The percentages pertaining to opinion writing are based on 12 issue areas of the Court’s docket.
- 19.
For example, Ponnuru (2012) wrote that Roberts “acted less like a judge than like a politician, and a slippery one.”
- 20.
- 21.
Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7 (2006); 28 U.S.C. § 1738C (2006)).
- 22.
See Letter from Eric H. Holder, Jr., Attorney General of the United States, to Hon. John H. Boehner, Speaker of the United States House of Representatives (Feb. 23, 2011) available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html
- 23.
See Attorney General Letter: “I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option.” https://www.justice.gov/opa/pr/statement-attorney-general-litigation-involving-defense-marriage-act
- 24.
Moreover, the administration’s argument that there was no reasonable defense of DOMA’s constitutionality was met with skepticism given that the federal government had recently been defending the law in federal court (Tipler 2013).
- 25.
- 26.
Arizona v. United States, 567 U.S. 387 (2012).
- 27.
In its 2009–2013 terms, the Supreme Court issued thirteen decisions on the merits concerning various aspects of immigration law (Johnson 2015). The Roberts Court considered issues of federal versus state authority, executive power, and the extension of civil rights to non-resident aliens. See Padilla v. Kentucky, 559 U.S. 356 (2010).
- 28.
- 29.
- 30.
See Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889).
- 31.
Mathews v. Diaz et al., 426 U.S. 67, 81 (1976).
- 32.
Randal C. Archibald, Arizona Enacts Stringent Law on Immigration, New York Times (April 24, 2010), http://www.nytimes.com/2010/04/24/us/politics/24immig.html?_r=0
- 33.
The Court had previously addressed this issue in Hines v. Davidowitz 312 U.S. 52 (1941).
- 34.
In re Aiken County, 725 F.3d 255, 264 (D.C. Cir. 2013).
- 35.
Kris W. Kobach, “The ‘DREAM’ Order Isn’t Legal,” New York Post, June 22, 2012.
- 36.
See Lozano v. City of Hazleton, 724 F.3d 297, 300 (3d Cir. 2013), Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013) (en banc), Valle del Sol, Inc. v. Whiting 134 S. Ct. 1876 (2014), and Keller v. City of Fremont.
- 37.
President Barack Obama, State of the Union Address (January 27, 2010) (transcript available at http://millercenter.org/president/speeches/detail/5706).
- 38.
Transcript of the Second Debate, New York Times (October 10, 2016).
- 39.
Source: SCOTUSblog Stat Pack: http://www.scotusblog.com/wp-content/uploads/2017/06/SB_agreement-tables_20170628.pdf
Bibliography
Applebaum, Binyamin, and Michael D. Shear. 2016. “Once Skeptical of Executive Power, Obama Has Come to Embrace It.” The New York Times, August 13, 2016, https://www.nytimes.com/2016/08/14/us/politics/obama-era-legacy-regulation.html
Archibald, Randal C. 2010. “Arizona Enacts Stringent Law on Immigration, The New York Times, April 24, 2010, http://www.nytimes.com/2010/04/24/us/politics/24immig.html?_r=0
Arizona v. United States, 567 U.S. 387 (2012).
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 US 721 (2011).
Baehr v. Miike 910 P.2d 112, 116 (Haw. 1996).
Baehr v. Lewin 852 P.2d 44 (Haw. 1993).
Bailey, Michael A. 2013. “Is Today’s Court the Most Conservative in Sixty Years? Challenges and Opportunities in Measuring Judicial Preferences.” Journal of Politics 75: 821–834.
Barnes, Robert. 2010. “Justice John Paul Stevens announces his retirement from Supreme Court.” The Washington Post, April 10, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/04/09/AR2010040902312.html
Binder, Sarah A. 2012. “Tis the Season for the Thurmond Rule.” Brookings, June 14, 2012, https://www.brookings.edu/opinions/tis-the-season-for-the-thurmond-rule/
Binder, Sarah A., and Forrest Maltzman. 2009. Advice and Dissent: The Struggle to Shape the Federal Judiciary. Washington, D.C.: Brookings Institution Press.
Biskupic, Joan. 2009. American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia. New York: Sarah Crichton Books.
Biskupic, Joan, Janet Roberts, and John Shiffman. 2014. “At America’s Court of Last Resort, A Handful of Lawyers Now Dominate the Docket. Reuters, December 8, 2014 https://www.reuters.com/investigates/special-report/scotus/#sidebar-analysis
Black, Ryan C., and Ryan J. Owens. 2011. “Solicitor General Influence and Agenda Setting on the U.S. Supreme Court.” Political Research Quarterly 64(4): 765–778.
Breyer, Stephen. 2016. The Court and the World: American Law and the New Global Realities. New York: Vintage Books.
Bullock, Charles S. and M.V. Hood. 2012 “The Tea Party, Sarah Palin, and the 2010 Congressional Elections: The Aftermath of the Election of Barack Obama.” Social Science Quarterly, 93: 1424–1435.
Canon, Bradley C., and Michael Giles. 1972. “Recurring Litigants: Federal Agencies before the Supreme Court.” Western Political Quarterly 25: 183–91.
Caplan, Lincoln. 1987. The Tenth Justice: The Solicitor General and the Rule of Law. New York: Vintage Books.
Carachuri-Rosendo v. Holder, 560 US 563 (2010).
Carp, Robert A., and Kenneth L. Manning. 2016. “U.S. District Court Database.” 2016 version n=110977. http://districtcourtdatabase.org
Chamber of Commerce v. Whiting, 563 U.S. 582 (2011).
Chae Chan Ping v. United States, 130 U.S. 581 (1889).
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
CNN. 2016. “Its Official: Clinton Swamps Trump in Popular Vote.” December 22. https://www.cnn.com/2016/12/21/politics/donald-trump-hillary-clinton-popular-vote-final-count/index.html
Crowley, Donald W. 1987. “Judicial Review of Administrative Agencies: Does the Type of Agency Matter?” Western Political Quarterly 31: 265–83.
Dahl, Robert A. 1957. “Decision-making in a Democracy: The Supreme Court as a National Policymaker.” Journal of Public Law, 6: 279.
Eagly, Ingrid V. 2013. “Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement.” New York University Law Review. 88: 1126–1223.
Eisenstein, James, Roy B. Flemming, and Peter F. Nardulli. 1988. The Contours of Justice: Communities and Their Courts. Boston: Little, Brown and Company.
Emery, Eugene C. Jr. 2016. “In Context: The ‘Biden Rule’ on Supreme Court nominations in an election year.” Politifact, Last visited January 13, 2018 http://www.politifact.com/truth-o-meter/article/2016/mar/17/context-biden-rule-supreme-court-nominations/
Entin, Jonathan L. 2012. “War Powers, Foreign Affairs, and the Courts: Some Institutional Considerations.” Case Western Reserve Journal of International Law, 45(1): 443–459.
Esposito, Liugi and Laura Finley-Barry. 2009. “Barack Obama, Racial Progress, and the Future of Race Relations in the United States.” The Western Journal of Black Studies 33:164–175
Feinstein, Dianne. 2017. “Opinion: Republicans Reversed Course on ‘Blue Slips’ for Judicial Nominees.” Roll Call. Last visited May 21, 2018 https://www.rollcall.com/news/opinion/blue-slips-judicial-nominees-feinstein
Frontline, 2013. “Inside Obama’s Presidency.” January 15, 2013. Last accessed January 10, 2018 at: https://www.pbs.org/wgbh/frontline/film/inside-obamas-presidency/
Funk, Derek. 2014. “Checking the Balances: An Examination of Separation of Powers Issues Raised by the Windsor Case.” Arizona State Law Journal 46: 1471–1497.
Gibson, James L., and Gregory A. Caldeira. 2011. “Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?” Law and Society Review 45: 195–219.
Goldstein, Amy and Paul Kane. 2009. “Senate Votes 68 to 31 to Confirm Sonia Sotomayor to Supreme Court” The Washington Post, August 7, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/08/06/AR2009080601706.html
Greenhouse, Linda. 2012. “The N.R.A. at the Bench.” New York Times, December 26.
Guttentag, Lucas. 2013. “Immigration Preemption and the Limits of State Power: Reflections on Arizona v. United States.” Stanford Journal of Civil Rights. & Civil Liberties. 9: 1–46.
Handberg, Roger. 1979. “The Supreme Court and Administrative Agencies: 1965-1978.” Journal of Contemporary Law 6 (Fall): 161–76.
Hines v. Davidowitz, 312 U.S. 52 (1941).
Hirschl, Ran. 2011. “The Judicialization of Politics.” In The Oxford Handbook of Political Science, Oxford University Press.
Hollingsworth v. Perry, 570 U.S. ___2013.
In re Aiken County, 725 F.3d 255, 264 (D.C. Cir. 2013).
Johnson, Kevin R. 2015. “Immigration in the Supreme Court, 2009-13: A New Era of Immigration Law Unexceptionalism.” Oklahoma Law Review 68: 57–188.
Keller v. City of Fremont, 719 F.3d 931, 951 (8th Cir. 2013), cert. denied, 134 S. Ct. 2140 (2014).
King v. Burwell, 576 U.S.___(2015).
Kobach, Kris W. 2012. “The ‘DREAM’ Order Isn’t Legal.” New York Post, June 22, 2012, https://nypost.com/2012/06/22/the-dream-order-isnt-legal/
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
Liptak, Adam. 2010. “Court Under Roberts is Most Conservative in Decades.” The New York Times, July 24, 2010, http://www.nytimes.com/2010/07/25/us/25roberts.html
Lozano v. City of Hazleton, 724 F.3d 297, 300 (3d Cir. 2013), cert. denied, 134 S. Ct. 1491 (2014).
Mathews v. Diaz et al., 426 U.S. 67, 81 (1976).
Martinez v. Regents of the University of California, 241 P.3d 855, 860 (Cal. 2010), cert denied, 131 S. Ct. 2961 (2011).
Maxwell, Angie and T. Wayne Parent. 2012. “The Obama Trigger: Presidential Approval and Tea Party Membership.” Social Science Quarterly, 93:1384–1401.
McCutcheon v. Federal Election Commission, 572 U.S. ___(2014).
McGuire, Kevin T. 1993. The Supreme Court Bar: Legal Elites in the Washington Community. Charlottesville: University Press of Virginia.
McGuire, Kevin T. 1995. “Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success.” The Journal of Politics 57(1): 187–96.
McGuire, Kevin T. 1998. “Explaining Executive Success in the U.S. Supreme Court.” Political Research Quarterly 51(2): 505–26.
Mellouli v. Lynch, 575 U.S.____(2015).
Memoli, Michael A. and Lisa Mascaro. 2016. “Obama’s Choice of Popular Centrist Merrick Garland for Supreme Court puts GOP to the Test.” Los Angeles Times, March 16, 2016
Moncrieffe v. Holder, 569 U.S.____(2013).
Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971).
Motomura, Hiroshi. 1999. “Federalism, International Human Rights, and Immigration Exceptionalism.” University of Colorado Law Review 70: 1361–94.
Muskrat v. United States, 219 U.S. 346, 361 (1911).
National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).
Obama, Barack. 2006. The Audacity of Hope: Thoughts on Reclaiming the American Dream. New York: Penguin Random House.
Obergefell v. Hodges, 576 U.S. ___(2015).
Pacelle, Richard L. Jr. 2003. Between Law and Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation. College Station: Texas A&M University Press.
Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010).
Pepper, Stacy. 2013. “The Defenseless Marriage Act: The Legitimacy of President Obama’s Refusal to Defend Doma § 3.” Stanford Law and Policy Review 24:1–34.
Ponnuru, Ramesh. 2012. “In Health-Care Ruling, Roberts Writes His Own Law.” Bloomberg, June 28, 2012.
Posner, Erik and Lee Epstein. 2018. “The Decline of Supreme Court Deference to the President. University of Pennsylvania Law Review 166: 829–860.
Price, Zachary S. 2014. “Enforcement Discretion and Executive Duty.” Vanderbilt Law Review 67: 671–769.
Roeder, Oliver. 2015. “Despite this Week’s Victories, Obama Has Struggled at the Supreme Court.” FiveThirtyEight, June 26, 2015, https://fivethirtyeight.com/features/despite-this-weeks-victories-obama-has-struggled-at-the-supreme-court/
Rosenbloom, Rachel E. 2013. “The Citizenship Line: Rethinking Immigration Exceptionalism.” Boston College Law Review 54: 1965–2024.
Ruckman, Peter Sturges, Jr. 1993. “The Supreme Court, Critical Nominations, and the Senate Confirmation Process.” Journal of Politics 55:793–805
Salokar, Rebecca M. 1992. The Solicitor General: The Politics of Law. Philadelphia: Temple University.
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886).
Savage, Charlie. 2012. “Obama Lags on Judicial Picks, Limiting His Mark on Courts.” The New York Times, August 17, 2012, http://www.nytimes.com/2012/08/18/us/politics/obama-lags-on-filling-seats-in-the-judiciary.html
Scott, Ryan W. 2014. “Standing to Appeal and Executive Non-Defense of Federal Law After the Marriage Cases.” Indiana Law Journal 89: 5: 67–93.
Segal, Jeffrey A., and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press.
Segal, Jeffrey. 1990. “Supreme Court Support for the Solicitor General: The Effect of Presidential Appointments. Western Political Quarterly 43(1): 137–52.
Singer, Joseph W. 2005. “Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation.” Stanford Journal of Civil Rights and Civil Liberties 1: 1–50.
Shapiro, Ilya. 2016. “Obama has Lost in the Supreme Court More than Any Modern President.” The Federalist, July 16, 2016, at http://thefederalist.com/2016/07/06/obama-has-lost-in-the-supreme-court-more-than-any-modern-president/
Shelby County v. Holder, 570 US___(2013).
Sheehan, Reginald S. 1992. “Federal Agencies and the Supreme Court: An Analysis of Litigation Outcomes, 1953-1988.” American Politics Quarterly 20 (October): 478–500.
Shipan, Charles R., and Morgan Shannon. 2003. “Delaying Justice(s): A Duration Analysis of Supreme Court Confirmations. American Journal of Political Science 47:654–668.
Slotnick, Elliot, Sara Schiavoni, and Sheldon Goldman. 2017. “Obama’s Judicial Legacy: The Final Chapter.” Journal of Law and Courts, 5:363–422.
Smith, Steven S. 2014. The Senate Syndrome: The Evolution of Procedural Warfare in the Modern U.S. Senate. Norman: University of Oklahoma Press.
Spaeth, Harold J., Lee Epstein, et al. 2017 Supreme Court Database, Version 2017 Release 1. URL: http://Supremecourtdatabase.org
Spaeth, Harold J., and Stuart Teger. 1982. “Activism and Restraint: A Cloak for the Justices’ Policy Preferences.” In Supreme Court Activism and Restraint, ed. Halpern and Lamb, 277–302. Lexington, MA: Lexington Books.
Sotomayor, Sonia. 2002. “A Latina Judge’s Voice.” Berkeley La Raza Law Journal 13: 87–94.
Stone, Geoffrey R. n.d. “How a 1973 Supreme Court Decision Has Contributed to Our Inequality.” The Daily Beast. Accessed 1/18/18. https://www.thedailybeast.com/how-a-1973-supreme-court-decision-has-contributed-to-our-inequality
Tate, C. Neal. 1995. The Global Expansion of Judicial Power. New York: New York University Press.
Tipler, Kathleen. 2013. “Obama Administration’s Non-Defense of DOMA and Executive Duty to Represent.” Maryland Law Review 73: 287–311.
Toobin, Jeffrey C. 2012. The Oath: The Obama White House and the Supreme Court. New York: DoubleDay.
Tribe, Laurence, and Joshua Matz. 2014. Uncertain Justice: The Roberts Court and the Constitution. New York: Henry Holt and Company.
Unah, Isaac and Ange-Marie Hancock. 2006. “Supreme Court Decision Making, Case Salience, and the Attitudinal Model.” Law & Policy 28: 298–320.
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
United States v. Windsor, 570 U.S. 744 (2013).
United States v. Texas, 579 U.S. ___(2016).
Valle del Sol, Inc. v. Whiting 732 F.3d 1006 (9th Cir. 2013), cert denied, 134 S. Ct. 1876 (2014).
Vartelas v. Holder, 566 U.S._____(2012).
Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013) (en banc), cert denied, 134 S. Ct. 1491 (2014).
Washington Post. 2009. “NRA’s Target: Sonia Sotomayor.” Editorial, July 28.
Wheeler, Russell. 2017. “Senate GOP used “Blue Slips” to Block Obama Judicial Nominees, But Now Wants to Trash the Practice.” Brookings. Accessed May 15, 2018.
Whitehouse, Sheldon. 2015. “Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts.” Harvard Law & Policy Review 9: 195–210.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
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Unah, I., Williams, R. (2019). The Legacy of President Obama in the U.S. Supreme Court. In: Rich, W. (eds) Looking Back on President Barack Obama’s Legacy. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-01545-9_8
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