by Mitch Kokai
Senior Political Analyst, John Locke Foundation
It’s hard to remember now. But one of the themes of Obama’s 2008 presidential campaign was “unity.” The soon-to-be president and his supporters hoped to transcend the deep partisan and ideological divisions in our society. For the most part, that hope has gone the way of George W. Bush’s promise that he was going to be “a uniter, not a divider.” Perhaps no president could truly deliver on such a promise in this day and age. But President Obama has managed to create a measure of unity in one often-divided institution: the Supreme Court.
In both today’s Noel Canning decision on recess appointments and yesterday’s cell phone search decision, the justices unanimously rejected the administration’s extreme positions, even though they disagreed on other issues involved in the two cases. In Noel Canning, the admininistration’s position that the president had nearly unlimited power to circumvent Senate confirmation of his appointees by manipulating recess appointments failed to win the support of either originalists or living constitutionalists. In the cell phone case, the administration line that the Fourth Amendment allows police to search the entire contents of a suspect’s cell phone any time they are arrested for virtually any reason was rejected by both conservative justices generally sympathetic to law enforcement and Obama’s own two appointees to the Court (one of them a former prosecutor).
These defeats follow a series of other unanimous setbacks for the administration in important constitutional cases over the last few years, which I wrote about in a USA Today op ed last year. The administration’s unanimous defeats in significant constitutional cases cover a wide range of issues, including freedom of religion, property rights, executive power, and the Fourth Amendment. What these otherwise disparate cases have in common is a strong reluctance to accept even modest limits on federal authority.