Constitution Experts Weigh in on Supreme Court Cases

Carol Nackenoff and Rick Valelly '75

Carol Nackenoff and Rick Valelly '75

In the wake of the Supreme Court's significant rulings to close its 2014-15 term, two of the the College's constitution experts, Claude C. Smith '14 Professor of Political Science Rick Valelly '75 and Richter Professor of Political Science Carol Nackenoff, share their thoughts on the impact and rationale of the Court's recent decisions, including marriage equality, the Affordable Care Act (ACA), and redistricting.

Valelly, whose current research on the political development of LGBT rights in the U.S., notes: "The Supreme Court's flurry of exceptionally important decisions -- upholding Obamacare, protecting fair housing, creating a national right to same-sex marriage, upholding the far-reaching institutional innovation of nonpartisan redistricting commissions, but also backstopping the death penalty and slowing down EPA efforts to reduce carbon emissions -- all underscore a basic political science lesson about the Court: that it makes public policy through jurisprudential reasoning. These decisions also underscore an inference that political scientists have begun to draw in the face of partisan gridlock and polarization, namely, that the Court-as-policymaker will become increasingly important and salient, for better or worse, the longer that this gridlock persists.”

Valelly adds that the recent rulings imply that the stakes of the 2016 election are particularly high, as the new president “is certain to alter, to some degree and in one direction or another, the accommodation that the Court's liberals and conservatives have been able to work out among themselves over the past few terms of the Court."

Nackenoff, who teaches constitutional law at the College, touched on several of the key cases decided on the last days of the Supreme Court term, noting that with the exception of King v. Burwell, these key decisions were decided by a 5-4 majority, with Justice Anthony Kennedy as the swing voter.

On King v. Burwell: “The Affordable Care Act withstands a major challenge that hinged on how to read some less-than-carefully-crafted language in the Act. A literal reading of the language regarding which exchanges qualified individual enrollees for subsidies (in the form of tax credits), opponents argued, would mean that millions of enrollees using exchanges set up in the states by the federal government should not be eligible to receive federal subsidies. Chief Justice John Roberts and Justice Kennedy joined the more liberal members of the Court in arguing that the language in the law should not be read as undermining the economic viability of the Affordable Care Act. As more people sign up for insurance coverage under the ACA, it will probably be more difficult to erase it from the books, even if a Republican administration succeeds the Obama Administration.”

On Obergefell v. Hodges:  “Justice Kennedy moves beyond his decisions in Romer (1996), Lawrence (2003), and Windsor (2013), all of which held that animus failed rational basis review (and singling out gays and lesbians served no legitimate governmental interest). Here, writing for a bare majority, Kennedy finds a fundamental right to marry from which gays and lesbians may not be excluded. His opinion did not determine whether gays and lesbians constituted a suspect class, nor did it resolve a number of questions sure to arise as a result, including whether non-discrimination statutes and ordinances must cover gays and lesbians.”

On Glossip v. Gross: “In another 5-4 opinion, written by Justice Samuel Alito, the majority held that the burden fell on the prisoner to demonstrate that there was a more effective, available drug and that execution by this protocol did not constitute cruel and unusual punishment. Two dissenters, Justices Stephen Breyer and Ruth Bader Ginsburg, questioned the constitutionality of the death penalty. For both Justice Alito and Justice Antonin Scalia, anti-death penalty activists were responsible for the absence of a better alternative because they pressured drug companies not to provide barbiturates for use in executions. This decision will make it harder to appeal lethal injection executions.”

On Michigan v. Environmental Protection Agency: “Again in a 5-4 ruling, with Justice Kennedy siding with the conservatives, the Court held that the EPA was required, in effect, to employ cost-benefit analysis in determining rules for regulation of power plant emissions that included rules for mercury.  The regulation of mercury, a clear environmental hazard present at coal-fired power plants, has been a battleground for most of the 21st century, with President George W. Bush’s Clear Skies initiative cap-and-trade plan for mercury emissions struck down in federal court; the EPA was told to regulate mercury emissions under a maximum achievable control technology standard. The EPA developed such regulations and they were rebuffed in an opinion authored by Justice Scalia. To determine whether a regulation is “appropriate and necessary” under the CAA, the EPA must consider not just risks to public health but must also consider the "costs to industry.”

On Arizona State Legislature v. Arizona Independent Redistricting Commission “In an attempt to curb partisan gerrymandering of congressional districts, a few states have recently established independent or advisory commissions to redraw districts. Arizona’s commission was established by a 2000 ballot initiative that sought to insure that voters chose representatives rather than representatives choosing the voters they wanted to represent, generating safe seats for themselves. In a 5-4 opinion, authored by Justice Ginsburg, the Court allowed that the Constitution permitted Arizona voters to take districting decisions out of the hands of legislators and give the task to an independent commission. The dissenters argued that the Constitution assigned the task of redistricting to a particular state actor, namely, the legislature. Partisan gerrymandering, which the Court has come close to saying is a nonjusticiable political question, is sometimes held partly responsible for polarization in Congress and low turnover in elections.”


Rick Valelly '75 is Claude C. Smith '14 Professor of Political Science at Swarthmore College, where he has taught since 1993. He is the author of the award-winning The Two Reconstructions: The Struggle for Black Enfranchisement (2004), American Politics: A Very Short Introduction (2013) and Radicalism in the States: The American Political Economy and the Minnesota Farmer-Labor Party (1989). His current research focuses on the political development of LGBT rights in the U.S. with a fellowship from the American Council of Learned Societies.


Carol Nackenoff is Richter Professor of Political Science at Swarthmore College, where she teaches American Politics, Constitutional Law, Environmental Politics, and Political Theory. She is the author of Oxford Bibliographies Online Guide to the Supreme CourtThe Fictional Republic: Horatio Alger and American Political Discourse (Oxford, 1994), and is a contributor to Jane Addams and the Practice of Democracy (University of Illinois Press, 2009). Her current research project is a manuscript on the contested meaning of citizenship in the United States from 1875-1925, a period that witnessed extensive conflict over the extent and terms of incorporation of women, African Americans, Native Americans, workers, and immigrants into the polity.