Hobby Lobby and Harris demonstrate a consistent theme of this term: The seeds of conservative transformations lurk in the court’s narrow decisions. Will Hobby Lobby remain merely a rule for closely held corporations, or does it herald a sea change in the court’s willingness to carve gaping holes in laws of general application for failing to accommodate religious objectors? Does Harris symbolize the first chess move (or, more accurately, the second) in a game that ends with the destruction of public-sector unions? It may be too soon to tell.Personally, I would also add McCutcheon v. FEC to the list of cases used to plant incrementalist seeds of conservative ideology. In this case, the court ruled in favor of the wealthy by holding—with the usual 5-4 ideological breakdown we have come to expect from this iteration of the Roberts Court—that aggregate limits on contributions violated the First Amendment. As with both Harris and Hobby Lobby, the ruling was "narrow" in the sense that it could have been much worse: if Justice Thomas had had his way, the court would have gone so far as to strike down all limits as unconstitutional. By that standard, surviving a campaign contribution case while losing only the aggregate federal limit is almost a relief.
But we shouldn't expect that the court will be content with advancing the conservative movement in these bite-size, incrementalist ways. Rather, it has established a methodology of using the more limited decisions as a pretext to rewrite or eliminate laws on a wider scale in subsequent decisions. Jeffrey Toobin at The New Yorker explains how this strategy was used to unwittingly assist the assistance of liberal justices in gutting the Voting Rights Act:
The template here is the court’s voting-rights jurisprudence. In the 2009 case of Northwest Austin Municipal Utility District Number One v. Holder, the court upheld a challenge to an application of Section 5 of the Voting Rights Act. Chief Justice Roberts’s decision was “narrow,” and it even drew the votes of the court’s more liberal members. Four years later, though, Roberts used the Northwest Austin precedent as a wedge to destroy both Section 4 and Section 5 of the Voting Rights Act, as well as much of its effectiveness, in the case of Shelby County, Alabama v. Holder. The liberals who signed on to the Northwest Austin decision howled that they’d been betrayed. But it was too late.Given the intentional uselessness of Congress, American governance has now become a battle between the Obama administration seeking to do whatever it can unilaterally to enact a liberal agenda, and the Supreme Court strategically eking out a way to advance conservatism through rearguard actions—with the exception of LGBTQ rights, where Justice Kennedy provides a 5-4 majority to the the liberals on the bench. And with four justices age 75 or older—two from the liberal wing, two from the conservative wing—the decisions made by possibly the next president, or maybe even during the last 18 months of the Obama administration, will loom especially large. We will either get a chance to stop the conservative winds blowing down the Supreme Court steps, or watch with little recourse as they strengthen to gale force.