U.S. Supreme Court to Government: No, You Can’t Do Whatever You Want

By Evan Bernick

This past term, the U.S. Supreme Court unanimously rebuffed the Obama Administration’s arguments in 13 constitutional cases. That’s right—13 times the federal government made arguments for government power that were so boundless and removed from the U.S. Constitution that they could not garner even a single vote. While it’s encouraging to see the Court properly engaging in particular cases, the federal government’s persistent refusal to acknowledge any limits on its own power means that the need for real judging in all constitutional cases remains critical.

Highlights from the 2013-2014 term included another campaign finance case—in which IJ submitted an amicus brief—McCutcheon v. FEC, where the Court held that tenuous fears about the appearance of corruption do not trump the First Amendment; Riley v. California, in which the Court held unanimously that police may not search cell phones without a warrant, even in the course of an arrest; and Harris v. Quinn, in which the Court rejected Illinois’ farfetched designation of home healthcare workers as “public employees” who could be forced to contribute money to a labor union. In all of these cases, the Court performed its truth-seeking function rather than bending over backwards to avoid saying “no” to government, as it so often does.

We will need plenty more judicial engagement next term to keep the government within constitutional bounds. As you read in the interview with GMU law professor Todd Zywicki, the Court will soon hear arguments in North Carolina Board of Dental Examiners v. FTC and consider whether an occupational licensing board composed of dentists can behave like a cartel—by outlawing non-dentist teeth whiteners—without being treated like one under antitrust law. The Constitution likewise prohibits government-operated cartels, and we have sued dental boards in Connecticut, Alabama and Georgia for violating teeth whiteners’ right to run an honest, minty-fresh business. Obamacare may also be headed back to the Supreme Court, as the authority of the federal government to hand out subsidies without explicit statutory authority is being challenged in multiple lawsuits. With another high-stakes term just around the corner, IJ’s Center for Judicial Engagement is prepared to make the case for truth-centered, impartial judging that stands up under any honest scrutiny.

Evan Bernick is the assistant director of IJ’s Center for Judicial Engagement.