While the country waits (and waits and waits) for the Supreme Court to announce its decisions in what court watchers are calling the Big Four—the two gay-marriage cases, the affirmative-action case, and the Voting Rights Act case—one thing has already become clear by the court’s decisions: the Obama administration has had a lousy year in the high court. While the administration has certainly won some cases, more often than not the court has rejected the administration’s arguments. On Thursday, for example, the court announced three decisions, rejecting the Obama administration’s arguments in each one.
In fact, this year may turn out to be one of the worst ever for the United States government at the Supreme Court.
Historically, there is no single litigant more successful in the Supreme Court than the United States. The court usually pays special attention to the arguments of the government’s representative, the solicitor general, whose office is known to have the best lawyers and the longstanding respect of the justices. Studies show that, in the past, the solicitor general won approximately 70 percent of its cases in the Supreme Court. That’s why the solicitor general is often referred to as the “10th justice.”
This term, however, the executive branch has lost far more cases than it has won. Although there are still some decisions to come—and one or two cases are mixed decisions that are hard to categorize—so far the court has clearly decided 24 cases in which the United States was a party. Fifteen of those cases went against the government, while only 9 sided with the administration. That’s a winning percentage of only 37 percent—a huge drop from historical patterns.
The court’s rejection of the Obama administration’s positions extends to cases in which the United States filed a “friend of the court” brief but was not officially a party to the litigation. In these cases, the court has rejected the arguments of the administration in 15 cases, while siding with the government in only 12. That’s a winning percentage of 44 percent.
More losses appear to be imminent. During oral arguments in the Voting Rights Act case, a majority of justices appeared prepared to turn aside the solicitor general’s argument that the law’s requirement that jurisdictions with a track record of racial discrimination preclear any changes to their voting systems with Washington. Justice Antonin Scalia dismissed this feature of the Voting Rights Act—arguably the most important piece of civil-rights legislation in American history—as a distasteful “racial entitlement.” Justice Anthony Kennedy, the swing justice, recognized the historical value of the act but nonetheless suggested that the method of identifying which jurisdictions are subject to the requirement had become, over the years, “improper.” “Well, the Marshall Plan was very good, too,” he said, “but times change.”
The court also seems prepared to reject the Obama administration’s arguments in several other major cases yet to be decided. The administration’s support of the University of Texas’s affirmative-action case did not receive a welcome reception from the bench. Nor did its nuanced yet politically insensitive argument that the court should declare gay marriage a constitutional requirement in states that allow civil unions, because there’s no good public-policy reason to deny the title of marriage to couples who already have all the other rights of married couples.
In the DOMA case, few justices were ready to endorse the administration’s claim that all laws discriminating against gays and lesbians should be subject to heightened judicial scrutiny, like laws discriminating on the basis of race or gender. Chief Justice John Roberts even took the opportunity to shame the president for refusing to defend DOMA even while enforcing its provisions in practice. “I don’t see why he doesn’t have the courage of his convictions ... rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.”
Justices don’t usually go out of their way to disrespect a sitting president. But, as Kennedy said, times change. These days, the court seems all too eager to express its disdain for Obama.
In part the Obama administration’s poor track record at the high court—last year, it also lost an unusually high number of cases, although that was obscured by its victory in the Obamacare case—is attributable to the hostility some of the justices have for Obama. Yet the administration shoulders some of the blame too, as evidenced by a number of unanimous decisions in which even the court’s liberal justices rejected the government’s arguments, which often go against precedent or assert nearly unlimited federal power. In Arkansas Fish and Game Commission v. United States, for example, the court by a 9-0 vote rejected the administration’s argument that it didn’t have to pay landowners whose property was damaged by the Army Corps of Engineers purposeful flooding, even though the court had previously held that similar temporary physical invasions must be compensated. The opinion was written by the not exactly conservative Justice Ruth Bader Ginsburg.
On Thursday the administration lost another big case, Agency for International Development v. Alliance for Open Society. The administration was defending a federal law requiring certain recipients of federal international aid to have an explicit policy against sex trafficking. Garnering only two favorable votes, the administration saw the law held unconstitutional as a violation of the First Amendment. The case was also notable as a rebuke of Sri Srinivasan, the brilliant young lawyer recently confirmed for a judgeship on the federal court of appeals for D.C. and inevitable Supreme Court justice shortlister.
As with last year, all this will likely be forgotten if the court surprises us with a major victory for the administration. A strong ruling declaring gay marriage a fundamental constitutional right, for instance, will surely be credited at least in part to the administration, which has promoted gay rights more than any other in American history. Yet such a surprise seems unlikely this time around. We don’t really need to wait much longer to know the Obama administration had a terrible, awful, horrible year in the Supreme Court.
Editor's Note: An earlier version of this article incorrectly stated the vote count of the Supreme Court's decision yesterday. We regret the error.