Pamela S. Karlan: No Respite for Liberals

ANTON CHEKHOV once remarked that “one must not put a loaded rifle on the stage if no one is thinking of firing it.” In the term that ended last week, the Supreme Court reached a liberal outcome in cases involving President Obama’s health care law, Arizona’s draconian immigration statute and mandatory life sentences for juveniles. But the conservative majority also laid down a cache of weapons that future courts can use to attack many of the legislative achievements of the New Deal and the Great Society — including labor, environmental, civil rights and consumer protection laws — and to prevent new progressive legislation. Far from being a source of jubilation, the term may come back to haunt liberals....

From the 1930s through the Warren and Burger courts, the Supreme Court largely deferred to the political branches’ judgments about the scope of these powers; it was their partner, not their adversary. The court recognized — as Justice Ruth Bader Ginsburg pointed out in her opinion on the health care case — that the political process was the primary vehicle for limiting government’s powers.

Under the last chief justice, William H. Rehnquist, the court began to turn, particularly on Congress’s commerce and enforcement powers. The court limited some statutes — notably, a section of the Americans With Disabilities Act that allowed state workers to sue their employers and a section of the Violence Against Women Act that gave victims of gender-motivated violence the right to sue in federal court — but upheld others, including other applications of the disabilities law, a provision of the Family and Medical Leave Act, and a statute criminalizing possession of homegrown marijuana....