The Supreme Court doesn't only make history. Sometimes it's swept along by historical waves, and sometimes it's caught up trying to resist them.
During the last few months, the justices recognized the centrality in our private lives of the smartphone by requiring that police obtain warrants to search the phones of people in their custody, but turned away the claim of the owner of another new technology, Aereo, that using its own antennas to deliver broadcasters' content didn't infringe copyrights.
As often happens, the justices issued decisions that couldn't be pigeonholed as liberal or conservative, or that confounded the expectations of both political blocs — unanimously overturning a Massachusetts law establishing buffer zones around abortion clinics, for example, on the grounds that barring protesters violated the 1st Amendment. And three conservative justices joined with the liberal minority to preserve the government's authority to impose controls on greenhouse-gas emissions from power plants, though it gave the Environmental Protection Agency just a smidgen less authority than it had claimed.
The case that raises the thorniest questions over the court's standing among the public and in the flow of history is the Hobby Lobby case, in which owners of family companies claimed their religious freedom was infringed by a federal law requiring that the health insurance plans they provide to employees include contraception.
It's unclear whether the decision places the court truly at odds with public sentiment. In part that's because the breadth of the decision is still unclear, even though Justice Ruth Bader Ginsburg, in her dissent, warned that it would lead the court "into a minefield" of differing religious claims.
"It's either a monumental case or no big deal, depending on who's doing the speaking," observed UC Irvine law professor Rick Hasen at a review of the court term sponsored by the school last week.
Opinion polls suggest that the public generally accepts contraception, approves its inclusion in health insurance, and tends to mistrust employer meddling in their workers' private lives; on the other hand, religious observance is a powerful force in people's lives.
The danger in Hobby Lobby may be that it forecloses a wider range of government regulations — affecting gender discrimination rules and such public health mandates as child immunizations, for example — than the court anticipated.
Supreme Court justices are not always the best judges of where their own decisions will lead. In his majority opinion in the infamous 2010 Citizen United case, which opened the floodgates of corporate funding of elections, Justice Anthony M. Kennedy expressed an almost endearing faith in the cleansing effect of disclosure — as long as citizens knew who the contributors were, where's the harm from corporate expenditures?
"With the advent of the Internet," he wrote, "prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters," allowing shareholders and citizens "to react to the speech of corporate entities in a proper way." Kennedy didn't account for the numerous subterfuges that corporate interests could use to conceal their contributions, or for
Nor, apparently, did he foresee how granting corporate entities the right of free speech otherwise reserved to "natural persons" would lead to granting them the right of religious observance, piety and scruple, as the court did in the Hobby Lobby case.
Past Supreme Courts have recognized the dangers of marching too far out of step with public opinion. In the 1930s, a solid clique of four right-wing justices (the "Four Horsemen," as they were known) formed a conservative core that overturned a host of anti-Depression federal and state initiatives. Most were New Deal programs, but the ruling that most seriously undermined the court's public standing overturned a New York state minimum wage law for women.
In that case, named "Tipaldo" after the
But the dissenters ridiculed the notion that employer and employee could enter into a work contract with anything resembling equal power. Justice Harlan Fiske Stone, in dissent, identified "grim irony in speaking of the freedom of contract" of workers forced by economic conditions to take jobs for less than a living wage, like Tipaldo's laundresses.
Stone's dissent, curiously, also foretold the tangles of the religious issue that would come before the court in Hobby Lobby. The due process clause, he wrote, no more expresses "our preference for some particular set of economic beliefs than it has adopted, in the name of liberty, the system of theology which we may happen to approve."
The Tipaldo decision produced indignation all along the political spectrum, not only among New Deal progressives. "The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee," raged a Republican newspaper in New York state, reported historian William Leuchtenburg.
The court soon realized it had gone too far by overturning federal laws aimed at improving workplace standards by labeling them a local issue, then overturning a local minimum wage law for interfering with contract rights. Less than a year later, the court reversed itself, upholding a Washington state wage law almost identical to the New York measure it had thrown out. (Roberts changed his vote, giving a majority to the other side.)
The court had felt the lash of public opinion. President
It's too early to know whether any of the court's recent decisions will produce the level of public outrage that its conservative tilt did in the 1930s. The country is more politically polarized today, and the economic urgency not as great. The Hobby Lobby ruling does not even rest on a constitutional principle but rather the interpretation of a statute (the Religious Freedom Restoration Act of 1993), which means it could be addressed by Congress, at least theoretically.
The justices seem to be trying to keep their opinions narrow — Justice
The court may be asked again to rule on gay marriage and the legality of broader provisions of the ACA, and questions of economic and political equality cannot be far behind. The narrowly divided Supreme Court will be facing momentous issues on which American society is undergoing historic change.
The riddle of what side of history the court will land on remains unanswered.