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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