January 28, 2010 / 3:59 PM / 10 years ago

Supreme Court moves right, focus on social issues

WASHINGTON (Reuters) - The Supreme Court’s conservative majority has drawn a rare rebuke from President Barack Obama for its corporate political spending ruling, but the justices are likely to move slowly into the economic arena, with hot-button social issues the main battleground.

The court recently struck down election spending limits, prompting Obama’s criticism in his State of the Union address. But legal experts said it would tread carefully in dealing with the president’s other regulatory and legislative programs.

The dispute took on a personal tone during the speech when Obama told Congress the 5-4 ruling “reversed a century of law” and “will open the floodgates for special interests, including foreign corporations, to spend without limits in our elections.”

Conservative Justice Samuel Alito, one of six court members in the audience sitting directly in front of Obama, shook his head and appeared to mouth the words, “that is not true.”

Attorney Tom Goldstein, who argues before the Supreme Court, said the administration is on the opposite side to the conservative justices on an array of federal legal questions.

Some major Obama initiatives, such as sweeping health care overhaul, regulating greenhouse gases and proposed bank fees, may not become law, leaving them outside the court’s purview.

“Though the court’s conservative majority will likely continue to move the law in important areas like religion and abortion, don’t expect them to declare war on the agenda of the Obama administration,” Goldstein said.

“The court has stayed away from redefining federal power over the economy, and that’s very unlikely to change,” said Goldstein, the founder of SCOTUSblog, which closely follows the Supreme Court.


“There is no doubt that the current court is pro-business. But how far it will go in striking down Obama legislation is unknowable,” said Erwin Chemerinsky, dean of the University of California, Irvine law school.

He said the campaign finance ruling had been easier to predict because conservatives have long opposed the limits and they now had a solid court majority bolstered by President George W. Bush’s two appointees — Alito and Chief Justice John Roberts. That majority is expected to last for years, barring unexpected vacancies due to illness or death.

With the court often split 5-4 between conservative and liberal factions, the decisive vote likely remains with Justice Anthony Kennedy, a more moderate conservative who wrote the majority opinion in the campaign finance case.

If Democrats in Congress find a way to enact a healthcare law that requires all Americans to have health insurance or else pay a tax, opponents have vowed to bring a constitutional challenge that the Supreme Court could end up deciding.

Wall Street’s main lobbying group, the Securities Industry and Financial Markets Association, has hired a top Supreme Court litigator, Carter Phillips, to work on regulatory and legislative matters, including a possible constitutional challenge to a proposed bank tax.

“There is not even legislative language and thus it is premature to speculate on any potential actions beyond opposing the proposal itself as both punitive and counterproductive,” a spokesman for the group said.

Last week’s ruling struck down long-standing campaign finance limits, allowing them to spend freely in U.S. elections for president and Congress.

Obama, a Democrat, in his address urged Congress to correct some of the problems he sees arising from the decision.

Senator Patrick Leahy, the judiciary committee chairman, on Thursday said it was the most partisan ruling since 2000 when the court effectively handed the disputed presidential election to Republican Bush over Democrat Al Gore.

“This decision is broader and more damaging in that they have now decided to intervene in all elections,” the Vermont Democrat said on the Senate floor.

Experts said the free-speech issues in the campaign finance ruling would not apply to challenges to Obama’s proposed economic measures which are covered by the power of Congress to adopt such laws under the Constitution’s Commerce Clause.

“We have to be cautious about reading too much into any one opinion about major shifts in the court,” said Carl Tobias, law professor at the University of Richmond.

Justice John Paul Stevens, leader of the court’s liberal wing, offered an impassioned dissent in the campaign finance case, criticizing the majority for overturning precedents.

There have been signs that Stevens, who turns 90 in April and the court’s longest-serving member, may be preparing to retire this summer. He has hired only one law clerk for the next term, instead of his usual four.

A retirement would give Obama his second Supreme Court appointment. Last year, he named Justice Sonia Sotomayor, who sided with the minority in the campaign finance case.

Republicans said the recent election of a Republican U.S. senator in Massachusetts could make it harder for Obama to get a liberal nominee approved by the Senate, especially ahead of the November congressional elections.

Editing by Alan Elsner

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