Today in D.C.

by John Yoo

This week is the first of October, the traditional opening day of the Supreme Court’s term. If the last two years weren’t enough (Obamacare in 2012; same-sex marriage in 2013), there are a number of big cases on the docket. This year, the Court will take up:

Whether President Obama could unilaterally appoint nominees to office that require Senate advice and consent, even when the Senate was formally in session.  I’ll be participating in a panel, after a speech by Senator Mike Lee, at the Heritage Foundation over lunch on Thursday about the case.  Here are the details.

 Another challenge to federal campaign laws – this time the limit on an individual’s overall contributions to federal campaigns.

A lower court’s decision to strike down Michigan’s prohibition on race-based affirmative action.

 Prayer at the opening of legislative sessions.

We all have our views on how these cases should turn out. Either way, they show that the justices feel little humility after the last two terms. Instead, this term shows that the courts intend to maintain their grip on some of our nation’s most important and controversial issues.

Another thought: The Court is anything but conservative, despite the claims many pundits have been making for the last several years. The Roberts Court may be deciding cases, in general, in a pro-business way. But pro-business does not necessarily mean conservative or libertarian.

No true conservative could have upheld Obamacare as within the limited powers of the federal government. No true conservative would have thrown out the Defense of Marriage Act, and set all state bans on gay marriage on their way to perdition, rather than allowing the issue to work itself out through our federal system. After the last two years, I wonder whether the conservative project over the last four decades to restrain the federal courts has failed . . . and whether conservatives would do better to spend their energies elsewhere.

— John Yoo is Emanuel S. Heller Professor of Law at the University of California at Berkeley.