A Transformative Era: The Roberts Court,Constitutional Interpretation,and Public Administration

The Equal Protection Clause and Gay Marriage

In the 2012 term, the Supreme Court addressed a seminal civil rights question for 21st century constitutional law: Does the Constitution afford gays and lesbians the right to marry? Congress answered this question definitively in 1996 when it passed the Defense of Marriage Act (DOMA). Section 3 of DOMA defined marriage as a “legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife” (DOMA 1 U.S.C. § 7). Because President Clinton signed this legislation into law, 30 states subsequently passed legislation that amended the definition of marriage. States that decided not to enforce DOMA incorporated more inclusive same-sex marriage legislation in their jurisdictions. Consequently, the failure of some states to enforce DOMA raised constitutional questions concerning which level of government superseded the other.

The story and case that captured the struggle of same-sex marriage was that of Edith Windsor and Thea Spyer. They began a long-term relationship in 1963. When New York City began recognizing domestic partnerships in 1993, the couple legally registered as such. By 2007, Spyer’s health began to deteriorate. She suffered from chronic progressive multiple sclerosis and doctors determined she had approximately 1 year left to live. Faced with this news, the couple traveled to Canada where same-sex marriage is legal and married. After returning back to the United States, Windsor and Spyer registered their marriage, and New York State recognized it as a legal union.

Spyer died in February 2009 and left all of her financial assets to Windsor. As Windsor was settling the estate, she learned that DOMA prevented the Internal Revenue Service (IRS) from granting her the marital tax exemption from the federal estate tax rule. This regulation “excluded from taxation any interest in property which passes or has passed from the decedent to his surviving spouse” (570 U.S. ____, 2013, p. 3). Windsor brought suit against the IRS in federal court claiming that she was the legal spouse of Spyer and that DOMA violated her Fifth Amendment guarantee of equal protection under the law.

To complicate this matter further, before the District Court Judge ruled in this case, Attorney General Eric Holder, with the support of President Obama, notified the Speaker of the House of Representatives that the U.S. Department of Justice would no longer enforce Section 3 of DOMA, because the administration determined it to be unconstitutional. There are two competing intellectual forces behind the President’s constitutional mandate to execute the nation’s laws faithfully. The most traditional view is that the President executes all of the laws faithfully. However, the power to execute the laws faithfully demands a certain degree of discretionary and practical judgment—the type of judgment the President and his administration can legitimate using democratic constitutional norms and values. The Obama administration relied on the latter interpretation to justify why it was no longer enforcing DOMA, a law it considered to be purposively unconstitutional.

In response to Attorney General Holder’s decision, the U.S. District Court allowed the Bipartisan Legal Advisory Group (BLAG) to intervene to defend the constitutionality of Section 3. The District Court ruled against the government and maintained DOMA undermined Spyer’s Fifth Amendment constitutionally protected equal protection liberty interests. In response to this finding of fact, the court ordered the U.S. Treasury Department to refund Windsor’s tax with interest. The Second Circuit Court of Appeal affirmed this decision.

Despite Windsor’s victory in the federal courts, the government did not comply with either judgment. The Supreme Court granted certiorari and addressed two key points in this case: (a) the constitutionality of Section 3 and (b) the political, administrative, and legal difficulties that occurred when the Justice Department chose not to enforce DOMA while the Treasury Department abided by the law and denied Windsor her tax refund. During oral arguments, Chief Justice Roberts was quick to express his frustration with the executive branch over this matter. If the administration questioned the constitutionality of DOMA, according to Roberts, it needed to work with Congress to create a new law and not arbitrarily select which laws it wanted to enforce and which it felt appropriate to negate. ² To this point, Justice Anthony Kennedy also observed, “The Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial terms has created a procedural dilemma” (570 U.S. ____, 2013, p. 12). The message the Court was sending is quite clear: It is the constitutional responsibility of the executive branch to execute all of the nation’s laws faithfully not just the ones the President and the Attorney General support. Here, we see a significant differentiation of constitutional interpretation between the Chief Justice and President Obama. Chief Justice Roberts takes the view that the President has no discretionary authority when it comes to the Executive’s constitutional responsibility to execute all of the nation’s laws faithfully. President Obama, by contrast, operated under the governing principle that if a law is knowingly and deliberately unconstitutional, the executive branch cannot faithfully execute it. In a word, the Obama doctrine held that the President and his administration can only execute and enforce laws that uphold the Constitution.

Justice Kennedy, writing for the majority in a 5-4 decision, held that DOMA’s definition of marriage was unconstitutional for three important reasons. First, Congress’s decision to recognize marriage as a legal union between one man and one woman denies all same-sex couples who want to marry their partner equal protection under the law. In a powerful rebuke of DOMA, Justice Kennedy noted,

The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment. (570 U.S. ____, 2013, p. 25)

In decisive language, Kennedy held that neither the states nor the federal government can regulate morality. When the government attempts to use the power of the law to legislate moral preferences of behavior to elevate one group at the expense of another, the law cannot stand on constitutional grounds. ³

Second, by the time this case reached the nation’s highest Court, New York and 29 other states had legally recognized and accepted same-sex marriage. By contrast, the very legal essence of DOMA restricted the definition of marriage and by doing so “imposes a disability on the class [same-sex couples] by refusing to acknowledge a status the State finds to be dignified and proper” (570 U.S. ____, 2013, p. 25). A significant problem with DOMA, according to the majority, was that it placed a legal value on the institution of marriage. It asserted that same-sex marriages were less worthy and less valued than marriages between opposite-sex couples. Finally, the Court argued that DOMA served no legitimate legal purpose, and by not serving a legitimate purpose it undermined the “personhood and dignity” of same-sex couples. For these reasons, the Court held that DOMA was unconstitutional.

The Court’s decision in Windsor not only expanded the Constitution’s protection of same-sex couples under the Due Process Clause of the Fifth Amendment, but it also had important implications for public sector management. When the Court makes a definitive ruling on a matter of constitutional interpretation, as was the case in Windsor, neither Congress nor the states can pass legislation that undermines it. Only the Court can change its own interpretation of the Constitution if it so chooses at a later date. ⁴ As the Constitution now recognizes and protects same-sex marriage, the government must provide the same benefits and services to same-sex married couples as it does to opposite-sex married couples.

Applying Affirmative Action in University Admissions

Affirmative action is one of the most divisive issues in contemporary American politics. It constitutes a redistributive effort to make opportunities available to individuals and groups who have been historically or traditionally discriminated against on the basis of race and ethnicity. The Equal Protection Clause of the Fourteenth Amendment demands that each state provide equal protection of the laws to any person in its jurisdiction. By its very nature, affirmative action policies attempt to treat certain groups differently because of their race, and in doing so directly challenge the purpose of equal protection. The balance between correcting the wrongs of the past and maintaining fundamental fairness has proven a delicate balance for the U.S. federal courts.

In the landmark 1978 case, Regents of the University of California v. Bakke (438 U.S. 265), Justice Lewis Powell writing for a heavily divided Court held that quotas based on race were unconstitutional. Although this opinion does not reflect support for affirmative action, Powell did provide a formative standard that paved the way for advancements in diversity. Although quotas went beyond the boundaries of the Constitution, the Bakke opinion held that race could be used as “a” factor but not “the” factor when determining admissions at public institutions of higher education.

The Supreme Court did not hear another major case challenging affirmative action policies and procedures in public university admissions until 2001. In Grutter v. Bollinger (539 U.S. 306, 2003), Justice Sandra Day O’Connor, writing for the majority, upheld the University of Michigan’s Law School’s admissions policy. In this case, the leadership at Michigan wanted to ensure that it was open and accessible to all members of society, irrespective of race. It also valued diversity in its student body, arguing that a more diverse student body enriches the learning process. To achieve this vision, Michigan established a race-conscious admissions policy to ensure a critical mass of diverse students. The Court gave great deference to Michigan’s holistic, highly individualized admissions process where race was one of many factors that helped determine a prospective student’s qualifications for admission. Michigan afforded great flexibility in the admissions process so that it considered all types of diversity when evaluating an applicant individually and when evaluating an applicant with the rest of the application pool collectively. The University successfully argued that this initiative worked to safeguard the principle that paths to leadership should be open to talented and qualified individuals of all races and ethnicities.

Grutter represented an enormous victory for proponents of diversity. It was one of the first times the Supreme Court had supported an affirmative action initiative, ⁵ maintaining that in this case, Michigan’s decision to use race as a factor in creating a diverse student body met the strict scrutiny standard. The critical mass policy fit the Court’s definition of a compelling state interest and Michigan implemented its admissions process by the least restrictive means possible.

The Court did not accept a challenge to the Grutter decision until 2012 when it heard oral arguments in Fisher v. University of Texas (570 U.S. _____, 2013). In 2008, Abigail Fisher, a Caucasian female from Texas, applied to the University of Texas at Austin for undergraduate admission. Based on the University’s (University of Texas at Austin) evaluation criteria for how it applied the Grutter precedent, the Office of Admissions rejected her application.

The specifics associated with this decision-making process are especially relevant for public administration at all levels of government. Achieving a critical mass of diverse students was an important institutional priority for the University. The state legislature established a law that guaranteed admission to at least one public university in Texas for all high school students graduating in the top 10% of their class and whose school complies with specific state standards for educational instruction.

Even with the top 10% law in place, the University of Texas at Austin was concerned that many undergraduate classes had few minority students enrolled. In June 2004, the University submitted a proposal to consider race and ethnicity in admissions. By the fall of that year, the University of Texas at Austin asked undergraduate applicants to identify themselves among five predetermined racial categories. The University did not assign an explicit numerical value to race, but it was undisputed that race was a meaningful factor of consideration, as it had been in Grutter. The University established a grid system for measurement. Once the admissions evaluators reviewed a candidate’s entire portfolio of credentials, the University admitted students who were above a certain line and rejected applicants who were below a certain line.

Fisher argued that as the University of Texas at Austin used race as one factor among many to evaluate students for admission, the University violated her equal protection rights under the Fourteenth Amendment. An important fact that often gets overlooked in the politicization of this case, however, is that Fisher was not in the top 10% of her high school class. On the basis of academic merit, she did not meet the rigorous standard for admission into the state’s flagship school for higher education.

Justice Kennedy, writing for a 7-1 Court, ⁶ remanded the case back to the Fifth Circuit Court of Appeals, arguing that since the lower court held that Fisher could only challenge whether the University of Texas at Austin acted in good faith in their admissions decision-making process, it had not applied the strict scrutiny standard correctly. Justice Ginsburg in her lone dissent vigorously disagreed. She praised the University’s application of Grutter arguing that it was an effort to create race consciousness not mere blindness to race. In a poignant nod to history, she observed, “Those that candidly disclose their consideration of race are preferable to those that conceal it” (570 U.S. _____, 2013, p. 3).

Once remanded, the Fifth Circuit affirmed the University’s admissions policy of incorporating race as a factor but not the factor in working toward achieving a more diverse undergraduate student body. Fisher again appealed this decision to the Supreme Court, and the Court granted certiorari. This time, the Court chose to make a definitive statement on the application of race in admissions for public colleges and universities. Justice Kennedy, writing for the majority, held that the University of Texas’ race-conscious admissions program was not a violation of the Fourteenth Amendment’s Equal Protection Clause. Interestingly, the majority was now in support of Justice Ginsburg’s dissent in the first hearing of this case, which speaks to Rohr’s (1989) insistence on the need to read, examine, and value the Court’s dissenting opinions. Often times, as in Fisher, dissenting opinions later become the Court’s majority opinion.

For public administrators working in admissions offices at public institutions of higher education, the Court’s opinion provides important guidelines for how to use race as a factor to help achieve diversity. The following passage offers the clearest message the Court has provided to this date:

Although admissions officers can consider race as a positive feature of a minority student’s application, there is no dispute that race [in this case] is but a “factor of a factor of a factor” in the holistic review calculus Consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities . . . Race, when considered in conjunction with other aspects of an applicant’s background, can alter an applicant’s score. Thus, race, in this indirect fashion, considered with all the other factors . . . can make a difference to whether an application is accepted or rejected. (2016, 579 U.S. _____, pp. 5-6)

The second Fisher case (579 U.S. _____) was a monumental decision in the history of advancing civil rights in the United States. Although allowing the Grutter precedent to stand, the Court provided more clarity as to how public universities can meet the strict scrutiny standard in practice.

Kennedy outlined three controlling principles that are relevant when evaluating the constitutionality of race-conscious decision-making and affirmative action. First, the strict scrutiny standard must be met. The university must demonstrate to a reviewing court that it is working toward a compelling state interest by relying on the least restrictive means possible to achieve that interest. Second, universities, not courts, should rely on trained experts to determine what factors constitute a diverse student body. Universities should also rely on the same trained experts to demonstrate how achieving diversity meets the educational goals of the institution. As such, courts will now defer to university decision makers and their expertise on how to achieve diversity. Third, universities will not receive judicial deference when determining whether they can use race to achieve their institutional goals. Public universities must provide evidence that not applying a nonracial evaluative mechanism would undermine their efforts to achieve diversity. In the quest to achieve a more equitable and fair society, the Fisher decision serves as a prime example of how the Supreme Court can shape the administrative state in its own image. In this case, the Court did so by maintaining the constitutional legitimacy of race-conscious decision making in the undergraduate admissions process at public colleges and universities. In addition, this case provides concrete instructions for public managers regarding how to use race in public sector admissions processes without violating constitutional law.

Limiting States’ Rights to Regulate Abortion

Like affirmative action, abortion is an extremely contentious policy in American politics today. Whenever the Supreme Court agrees to hear a case concerning abortion regulation or abortion rights, it attracts national attention from individuals and groups who care passionately about this subject. One of the ways antiabortion activists have worked to narrow the application of Roe v. Wade ⁷ and Planned Parenthood v. Casey ⁸ is through the state legislative process and gubernatorial orders.

In 2013, the Texas legislature enacted House Bill 2 (H.B. 2), legislation that worked to limit access to abortion clinics throughout the state. Two provisions of this legislation directly challenged Roe and Casey. First, the law required all abortion clinics to meet the same safety and staffing standards of a hospital operating room. Second, the law required all physicians who performed abortions to have admitting privileges at a hospital no more than 30 miles from the clinic where they perform abortions. Angered by the passage of this law, Texas physicians who work with women on matters of reproductive health brought suit against the state in federal court for violating Roe and Casey.

In Whole Woman’s Health et al. v. Hellerstedt (579 U.S. _____, 2016), Justice Stephen Breyer rendered an opinion for the Court’s majority that served as a major victory for abortion rights activists. The Court held that H.B. 2 placed an undue burden, embedded with substantial obstacles, for women seeking an abortion. These burdens and obstacles constitutionally undermined the Court’s previous decisions in Roe and Casey. Justice Breyer rebuked the purpose of H.B. 2 in stark terms,

When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case. (579 U.S. _____, 2016, p. 23)

In Justice Ginsburg’s brief concurrence with Breyer’s majority opinion, she struck at the constitutional core of the case:

Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements . . . Given those realities, it is beyond rational belief that H.B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.” (579 U.S. _____, 2016, p. 3)

After the Court’s decision in Casey, Justice Harry Blackmun, author of Roe, wrote in his notes “Roe lives” (Greenhouse, 2006), and so it does in the Roberts Court as well.

The Court’s decision in Hellerstedt illustrates the power of the federal judiciary to influence the public policy agenda of the nation at all levels of government. The Texas legislature sought to limit abortion rights—rights that the Supreme Court has declared since 1973 were constitutionally protected. It was a political battle that brought former state representative Wendy Davis to national attention after she filibustered the bill for 11 hours in hopes of having it defeated. Although she lost that battle, the U.S. Supreme Court found this legislation unconstitutional, delivering a major defeat for the pro-life and antiabortion movements.

Expanding Second Amendment Rights

The Second Amendment’s guarantee that citizens have the right to keep and bear arms has become a polarizing political and legal topic in the United States. Two Second Amendment cases in the Roberts Court have fundamentally altered the constitutional landscape in the United States regarding handgun ownership.

In District of Columbia v. Heller (554 U.S. 570, 2008), the Court examined the constitutionality of a D.C. law that (a) banned handgun possession and ownership throughout the District, (b) prohibited the registration of handguns, and (c) required residents who owned other types of firearms to register those arms with the District and to keep them unloaded and dissembled or bound by a trigger lock at all times. If individuals violated any part of this law, they were subject to a fine and up to a year in prison for the first offense and up to 5 years in prison for the second.

Dick Heller, a District of Columbia special policeman who resided in the District, wanted to purchase a handgun for personal use and protection in his home. He applied for a handgun permit and the District denied his request. Heller brought suit in federal court claiming that the denial of a handgun license undermined his Second Amendment constitutional rights.

Justice Antonin Scalia, writing for the majority, was deeply troubled by this law. He argued that the very essence of the Second Amendment confers an individual right to keep and bear arms, especially in the home for that is “where the need for defense of self, family, and property is most acute” (554 U.S. 570, p. 56). The right to self-defense is deeply rooted in American constitutional tradition. The text of the Second Amendment could not allow this law to stand. In addition to declaring District of Columbia’s ban on handguns unconstitutional, the Court held that the District’s policy of requiring residents to keep all firearms in their homes inoperable violated the Second Amendment. If individuals cannot operate their guns, according to the majority, they cannot rely on them for self-defense, and that, too, violates the Second Amendment.

Recognizing that many would pose policy objections to this opinion, Scalia and the majority asserted that this decision did not infringe upon long-standing regulations that prohibit gun ownership to felons and the mentally ill. It placed no restriction on policies keeping firearms out of schools or government buildings. And, it did not restrict rules for conditions and qualifications for the commercial sale of arms. Those prohibitions remained constitutional.

In concluding his argument, Scalia provided a sober reminder to his critics: A law that purposively undermines an individual’s constitutional right to keep and bear arms cannot stand. It is “not the role of this Court to pronounce the Second Amendment extinct” (554 U.S. 570, p. 64).

In McDonald v. Chicago (554 U.S. 570, 2010), the Court expanded the Heller decision to apply Second Amendment protections to states and localities. Otis McDonald, a Chicago resident, wanted to purchase a handgun for self-defense purposes. Increased crime and drug use had undermined the safety of his neighborhood, and he was concerned for his well-being. In an effort to curb crime, the City of Chicago required all handguns to be registered; however, since 1982, it maintained a citywide ban on the ownership of firearms. McDonald sued the City in federal court claiming this prohibition violated his Second Amendment protections.

Writing for the Court, Justice Samuel Alito drew important attention to how and why the Second Amendment is deeply rooted in American history. In keeping with the Heller decision, the Court held:

Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States and thus limits (but by no means diminishes) their ability to devise solutions to social problems that suit local needs and values. (554 U.S. 570, pp. 37-38).

Taken together, Heller and McDonald provide important lessons for public administration. In both cases, the Court ruled that in denying individuals access to handguns, the District of Columbia and Chicago were in violation of the Constitution. These cases also highlight the complexity of federalism. The nation’s highest Court was instructing local governments on how to implement local policies. This is often easier said than done.

From a managerial perspective, both cases require police departments, prosecutors, and other civil servants working in the criminal justice system to create new policies and decision-making practices for how they can enforce gun ownership regulations and ways to deal with the increased risk to the public by allowing more people to own guns. In a city like Chicago, which has been inundated with gun violence in recent years and is regarded as the country’s deadliest city, the effects of these cases have been severe. In 2016, Chicago police reported more than 760 homicides within the city’s jurisdiction, representing a 42% increase from the previous year. ⁹ During the first weekend in June 2019, Chicago police responded to 52 shootings in which 10 people were killed. ¹⁰ The Chicago Mayor’s Office reported that the city’s police department recovered 7,000 handguns that were illegally owned or associated with a crime between 2013 and 2016. ¹¹ This number is 6 times as many recovered guns per resident as found by authorities in New York City and almost twice as many as Los Angeles (see Note 11).

In an effort to respond efficiently and effectively to increased gun violence and gun-related homicides, police departments have to allocate more resources in an effort to keep citizens safe while also working harder to ensure greater safety protections to officers responding to instances of gun-related violence. Chicago’s newly elected mayor, Lori Lightfoot, has made decreasing gun violence one of her top executive priorities. She maintains, “There is no higher calling than restoring safety and peace in our neighborhoods . . . Enough of the shootings. Enough of the guns. Enough of the violence.” ¹²

The Chicago mayor’s response to the effects of increased gun violence in her city very much calls into question the practical legitimacy of Heller and McDonald. Protecting the Second Amendment from afar is easy. Dealing with the day-to-day tragedies associated with the type of gun violence that decimates American cities and ruins American communities is beyond rational, reasonable comprehension. ¹³ And for street-level bureaucrats and first responders responsible for ensuring the safety and well-being of citizens, the preservation of the constitutional right to keep and bear arms as understood by the majority in these two opinions provides little to no comfort.

Upholding the ACA

History will likely regard Chief Justice John Roberts’ majority opinion in National Federation of Independent Business v. Sebelius (567 U.S. ______) as one of the most defining cases of his tenure on the Court. Health care reform was a central priority for President Barack Obama. In March 2010, Congress passed the Patient Protection and ACA and the Health Care and Education Reconciliation Act (HCERA). This legislation represented the most expansive overhaul of the country’s health care system since Lyndon Johnson signed the Social Security Act into law in 1965, establishing Medicare and Medicaid.

Both laws transformed the American health care system. The goals of the legislation were to provide health care to all Americans, control the cost of health care, and improve health care quality. To implement these goals, Congress required all individuals to have health insurance and for all businesses to provide health care to their employees. The ACA and HCERA also increased federal subsides for health care, established new regulations for the health care industry, and initiated changes in the practice of medicine. ¹⁴

The individual mandate portion of the ACA was the most controversial of these requirements and the provision that raised the most constitutional objections. It required individuals to have at least minimal health care coverage by 2014. For this reform effort to work, the U.S. Department of Health and Human Services required the implementation of the individual mandate. The mandate further stipulated that if individuals chose not to purchase health insurance, the government would subject them to a financial penalty.

Chief Justice Roberts held that the individual mandate is constitutional because of Congress’ power to lay and collect taxes. Jeffery Rosen (2015), writing for the New York Times, summed up the Chief Justice’s majority opinion in a highly astute way:

His insistence that the court should hesitate to second-guess the political branches regardless of whether liberals or conservatives win is based on his conception of the limited institutional role of the court in relation to the president, Congress and the states. (p. 1)

The majority’s decision in this case left the policy making associated with health care reform to the political branches of government and by doing so kept the Court more insulated from the partisan politics that engulfed this reform effort.

This decision allowed for the full implementation of the ACA and HCERA to go into effect. As such, American health care was transformed. The ACA’s Medicaid Expansion requirement increased health insurance coverage for eligible recipients while also increasing their access to health care and health-related services. It made health care more affordable through its creation of health insurance exchanges to offer individuals, families, and businesses competitive options for health care, and by its establishment of state-specific Medicaid options, allowing states with larger Medicaid populations greater access to federal funds. The law also represented the largest expansion of mental health and substance abuse services in a generation.

On December 14, 2018, Judge Reed O’Connor of the Federal District Court in Fort Worth, Texas, ruled that the entire ACA was unconstitutional. Unlike Chief Justice Roberts, Judge O’Connor held that the law’s individual mandate requiring people to buy health insurance is unconstitutional, and without this mandate, the ACA cannot function. President Donald Trump and the Justice Department have now relied on this decision to argue for the abolishment of the ACA. A coalition of states has appealed this ruling and the case will likely make its way back to the Supreme Court. In addition, the Court has agreed to hear combined challenges in the 2019 term from three small health insurers who maintain the federal government owes them US$12 billion under the ACA guidelines. If the insurers win this case, the Trump administration will likely be forced to pay this money and continue to fund legislation it deems unlawful. ¹⁵

From a practical perspective, if the Court were to reverse the totality of its decision in Sebelius, the administrative, economic, and public health effects would be enormous and felt throughout every locality and state across the nation. The numbers reported by the Congressional Budget Office, the U.S. Department of Health and Human Services, the Urban Institute, the Kaiser Foundation, the Brookings Institute, and the Commonwealth Fund are staggering: A total of 21 million Americans could lose health insurance coverage; 12 million adults could lose Medicaid coverage and 60 million Medicare beneficiaries would have changes made to their medical care and higher premiums would likely occur; there would be a loss of US$874 million to cover the current opioid addiction crisis; insurance companies could once again deny individuals and families coverage based on a preexisting condition, which currently affects 133 million Americans; 171 million Americans would no longer be protected from caps that insurers previously had to pay out for expensive medical treatments; and 2 million young adults currently covered under their parent’s insurance plans would lose coverage. ¹⁶ The Urban Institute estimates the net result of such a decision would likely cost American taxpayers US$50 billion. ¹⁷

This type of case serves as a prime example for why the expertise of civil servants is acutely needed within the courts. Policy experts would be able to explain to judges the advantages, disadvantages, costs, and limits that would likely occur should the federal courts overturn this precedent. In turn, this would allow the civil service to take its rightful place as a key contributor to constitutional law.

Limiting the Application of the VRA of 1965

The VRA of 1965 was one of the cardinal legislative achievements of the Lyndon Johnson administration, the Civil Rights Movement, and the 89th Congress. Congress overwhelmingly supported renewing this legislation in 1979, 1975, 1982, and 2006. The VRA worked to combat racial discrimination and Jim Crow laws that promulgated voting rights barriers for people of color.

The most substantive elements of the VRA are Sections 4 and 5. Section 4 distinguished among certain states and jurisdictions with a history of civil rights and voting rights violations. Originally, covered jurisdictions included Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, North Carolina, and one county in Arizona. Later, Congress expanded covered jurisdictions to include non-English speaking citizens and added Alaska, Arizona, Michigan, New York, Texas, several counties in California, and South Dakota. Section 5 required that when any state or jurisdiction covered by Section 4 wanted to make changes to voter laws, voter registration, or voting policy, they first had to receive preclearance from the Attorney General of the United States or from a three-judge panel from the U.S. District Court system.

The case of Shelby County, Alabama v. Holder (567 U.S._____) changed this requirement dramatically. Shelby County, Alabama—a county that had more voter discrimination infractions than any other country in the country—brought suit in federal court against Attorney General Eric Holder, because it wanted to amend its voting laws without federal interference.

In a sharply divided 5-4 opinion, Chief Justice Roberts held that the formula Congress used to determine which states had to comply with Sections 4 and 5 was based on data that were almost half a century old and, therefore, unconstitutional. The Court also held that Sections 4 and 5 infringed upon the rights of states to make their own laws and determine their own policies concerning voting rights. According to the Chief Justice, these requirements constitute an “uncommon exercise of congressional power” (567 U.S. ____, p. 12).

Shelby County poses significant challenges to public administrators who have the responsibility of ensuring that local and state governments do not infringe upon citizens’ constitutionally protected rights to vote in the electoral process. This is especially true in areas where, as Justice Ginsburg writing for the dissent argued, voting discrimination still occurs, especially against Americans of color (567 U.S. ____, p. 1). The Court’s willingness to terminate the remedy that proved to be best suited to block that discrimination, according to Ginsburg, was disappointing and unnecessary (567 U.S. ____, p. 2).

The dramatic increase in voter suppression that has occurred across the United States since Shelby certainly substantiates Justice Ginsburg’s dissenting concerns. The Georgia gubernatorial race in 2018 between Stacey Abrams, running to become the nation’s first African American female governor, and Brian Kemp, the state’s Secretary of State who was in charge of elections and declared himself the winner of the governorship, is a prime example. In 2017, Kemp removed 668,000 Georgians from participating on Election Day, which included 400,000 residents who supposedly moved out of state. Upon further analysis, 340,134 of these 400,000 Georgian voters did not change residence and were wrongly denied their right to vote, as they were still residents of the state. ¹⁸ Just as startling, from 2012 to 2016, Georgia removed 1.5 million voters from its records, representing more than 10% of the state’s voting population (see Note 18). Three months before the gubernatorial election in 2018, it surprised few when Kemp made the decision to eliminate more than 85,000 voters from their respective voting rosters (see Note 18).

Speaking more broadly to the issue of voter suppression, the Brennan Center for Justice found that 31 state legislatures introduced 99 bills specifically designed to suppress voters after the Shelby decision. ¹⁹ The 2018 mid-term election provides a firsthand account of how states are implementing the Shelby precedent. Voting purge rates are higher than they were a decade ago, and rather predictably if one follows Justice Ginsburg’s logic, voting purge rates increased in the jurisdictions formerly subjected to federal oversight (see Note 19). As was the case in Georgia, many states are continuing to administer flawed purging of citizens from their voting rolls. And as the Court intended with the Shelby majority, the federal government’s role in maintaining the eligibility of every citizen’s constitutional right to vote has decreased considerably.

Deregulating Campaign Finance Laws

In perhaps the most unexpected case of the Roberts Court so far was Citizens United v. Federal Elections Commission (558 U.S. 310). Here, the Court overturned the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain–Feingold law. This law prohibited corporations and unions from using general treasury funds to contribute to candidates directly or from using independent expenditures to advocate for the election or defeat of any candidate running for public office. The law did permit corporations to establish a separate, segregated fund for these purposes as long as these donations came from stockholders and employees of the corporation or members of the union.

Justice Kennedy, writing for the majority, held that while the government can still regulate corporate political speech through disclaimer and disclosure requirements, it cannot regulate corporate political speech through the regulatory process. In a rather dramatic opinion, the majority held that a corporation’s political speech is constitutionally protected under the First Amendment. They based this assessment on the belief that political speech is essential for democracy, and the First Amendment does not support the suppression of any form of political speech by media corporations or other associations of people. Civic discourse, according to the majority, must be left to the people to decide, not the government.

The controversy surrounding Citizens United has not dissipated. It has enabled the establishment of Super PACs, which allows outside groups to raise unlimited amounts of dollars that can be funneled to various election campaigns. There is growing evidence that as we spend more money on elections, we not only increase the influence of corporate power on American democracy but we also allow for increased corruption. This raises serious questions about the institutional and constitutional integrity of the electoral process. ²⁰

Constitutional Boundaries for Contraceptive Coverage

In Burwell v. Hobby Lobby (573 U.S. ______), the Court reviewed a contraceptive mandate regulation adopted by the U.S. Department of Health and Human Services under the ACA’s statutory authority. This rule required employers to cover certain contraceptives for their female employees. The owners of Hobby Lobby, an arts and crafts retail outlet, the owners of Conestoga Wood Specialties Store, and Mardel, a company that operates 35 Christian bookstores, brought suit against the federal government for requiring them to provide contraceptive coverage as part of their insurance plan for their female employees. They based this claim on provisions of the Religious Freedom Restoration Act (RFRA) of 1993. This law prohibits the government from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability. The owners of Hobby Lobby, Conestoga’s, and Mardel are devout Christians who oppose abortion. They believe life begins at conception and do not support any medical decision that infringes on the process of conception. As the ACA’s contraceptive mandate could cover prescriptions like the morning after pill and intrauterine devices, they argued this provision placed a substantial burden on their free exercise of religion.

Justice Alito, writing for the majority, agreed with the business owners. The Court held that this was not the least restrictive means for achieving a compelling government interest. The Court further maintained that the option of requiring the companies to pay US$475 million in fines and penalties for violating this federal regulation or to subject themselves to fund religiously objectionable contraception was a direct violation of the RFRA. In a vigorous dissent, Justice Ginsburg argued that the application of the RFRA in this case was incorrect. She made the case that “any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults” (573 U.S. _____, p. 23). She predicted that the Court “ventured into a minefield” with this decision and somberly observed that “approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude’” (573 U.S. _____, p. 34).

Regardless if one favors Justice Alito’s affirming opinion or Justice Ginsburg’s dissent, the case itself provides important insight into public sector decision making. This case, like most, begins and ends with decisions made by public administrators in a government agency regarding how best to interpret statutory law. Based on that interpretation, the agency created a regulation to implement parts of this law into practice. This provides another prominent example supporting Rohr’s (1989) argument that scholars, practitioners, and students of our profession must pay close attention to the Court’s decisions. Supreme Court cases not only educate us about constitutional law, they also create opportunities to reflect on the nature of the boundaries of administrative discretion in a regime of constitutionally limited government. Taken together, both underscore the complexities of democratic governance in the American administrative state.