This Week’s Mtg: Whose Side Is the Supreme Court On?

Next Monday, March 26 the Supreme Court will hear oral arguments on the Obama health care reform law.  (I’ll link to it but it will be five hours long.)  Later this Spring the Court will rule on the measure and also on Texas’s redistricting law and Arizona’s immigration law.  When the Supremes take on highly controversial issues people tend to ask, “Whose side are they on?”  This will be the subject on Thursday at our first meeting at Eclipse Chocolat, 2121 El Cajon Blvd.

By “whose side” is SCOTUS on, we can mean one of two things, I suppose.  First, we can be referring to the Court’s historic role in the American political system.  Is the Court a conservative, anti-democratic institution?  Is it by nature on the side of the status quo most of the time, allied with whoever is in control of the economic and social power structures?  Or, does SCOTUS sometimes lead us in a progressive direction, whether the public wants it to do so or not?  Second, we could be talking about today’s Court, with its five highly conservative justices (Scalia, Thomas, Roberts, Alito, Kennedy) and four moderates or liberals (Breyer, Ginsberg, Sotomayor, and Kagan).

We’re a fairly knowledgeable crowd these days on Constitutional ABCs and basic U.S. history.  So, I’ll skip the Intro to SCOTUS 101 speech.  Instead, I’ll outline:

  1. The range of opinion on how conservative SCOTUS traditionally has been, including how often it deliberately runs ahead of public opinion; and
  2. How conservative – by any measure – the current Court is.
  3. The major issues the Court has agreed to consider in the Affordable Care Act (ACA).

Then, we can debate the issue, with the usual mix of Constitutional theory, history, and polemics.  Hey, it’s what we do.


  1. Whose side has SCOTUS been on historically?  Why? 
  2. How “political” is the Court?  How much do they consider elite and public opinion?
  3. What typically has happened when the Court has acted at odds with elite or public wishes?
  4. How conservative is the current Court?  Compared to what?  Are the four more moderate justices fighting this trend or going along with it?
  5. What are the issues on the ACA the Court has agreed to consider?  How might they rule, which they must do by the end of the term in June? 
  6. Have liberals relied too much on SCOTUS rulings (rather than legislation through swaying public opinion) to get their way?  Are conservatives beginning to make the same mistake?


NOTE:  Our first week at Eclipse Chocolat is kind of a tryout!  Let’s start off in our new home by impressing them:  No shouting or spats, buy stuff, and be friendly to the staff.  I’ll be there at 6:30 to show them how we want the setup.


One response

  1. Jeffrey Rosen in “The Most Democratic Branch: How the Courts Serve America” makes a fairly good case that the courts are actually more responsive to public opinion than the other branches. Not sure that I completely agree with him or that even if it is true, that this means that the courts are all that much better.

    It seems to me that both political parties are tending more and more to wanting personal and party loyalty rather than loyalty to any real principles. Since supreme court justices typically stay on for a very long time, this tendency would take longer to make its way into the system, so perhaps the courts are merely lagging behind the times.

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