This week, gay marriage, Voting Rights Act and 'affirmative action' decisions understandably dominated the headlines. But several 5-4 rulings that received little attention provided a critical reminder that the judicial branch remains a rare redoubt of wisdom and protection within our federal system.

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This month, America passed a surprising and significant milestone. 

According to Gallup, George W. Bush now exceeds Barack Obama in public approval. 

Looking back to four short years ago, how many would have predicted that reversal of fortunes?  Who expected that it would only take one term of getting to know Obama to reduce him from such stratospheric heights to below that of his reviled predecessor?  It is truly astounding, and offers reassuring confirmation of Abraham Lincoln’s adage that you can’t fool all of the people all of the time. 

Nevertheless, among libertarians and conservatives opinion regarding Bush’s legacy remains divided.  For two critical reasons, however, those on the more skeptical side might reconsider their position:  Supreme Court Justices John Roberts and Samuel Alito. 

Had the closely contested 2004 election turned out differently, John Kerry would have been the man replacing Justices William Rehnquist and Sandra Day O’Connor, with catastrophic effects for the nation.  The landmark decisions affirming the individual right to keep and bear arms via the Second Amendment provides perhaps the most vivid illustration. 

This week, gay marriage, Voting Rights Act and “affirmative action” decisions understandably dominated the headlines.  But several 5-4 rulings that received little attention provided a critical reminder that the judicial branch remains a rare redoubt of wisdom and protection within our federal system. 

In Koontz v. St. John’s Water Management District, the Court scored an important victory for property rights in a Fifth Amendment takings clause case.  The plaintiff had purchased 15 acres of land near Orlando, Florida for development, but a local government agency refused to grant him a permit unless he agreed to pay for improvements of unrelated public property several miles away.  Writing for the majority, Justice Alito held that the agency’s “extortionate demands” in holding the permit hostage for money amounted to a taking of property without just compensation.  That decision obviously contrasts with the 2005 Kelo v. City of New London decision that did such damage to property rights and takings clause jurisprudence. 

In two 5-4 employment discrimination rulings, meanwhile, the Court brought clarity and common-sense restraint upon plaintiffs’ ability to sue employers.  In Vance v. Ball State University, the Court finally defined “supervisor” to require actual authority to hire, fire, demote, promote or transfer the plaintiff employee.  Because employers face greater liability for discrimination by a supervisor as opposed to an ordinary employee, bright-line guidance in this area was needed.  Naturally, the Obama Equal Employment Opportunity Commission (EEOC) reacted with distress, which in and of itself creates a presumption that the Court ruled correctly.  And in University of Texas Southwestern Medical Center v. Nassar, Justice Kennedy wrote for the majority that plaintiff employees claiming retaliation against employers must show that alleged adverse employment actions were actually motivated by the plaintiff’s protected activity.  That stands to reason, but reason is often in short supply in our jackpot justice judicial system. 

In three other cases, the Court issued decisions that prompted one attorney who specializes in Supreme Court litigation to observe, “This term was a near-bloodbath for class-action plaintiffs’ lawyers.”  In one, the Court’s conservatives ruled that in order to proceed as a class action, plaintiffs attempting to represent two million cable subscribers must show some rational way of allocating monetary damages in the event of a victory to proceed.  In another notable case, the Court limited foreign plaintiffs’ ability to sue foreign corporations in U.S. courts for alleged human rights abuses occurring abroad.  In the third case, Justice Scalia wrote for a 5-4 majority that plaintiffs attempting a class-action lawsuit must be held to the terms of contracts they signed to arbitrate potential claims. 

If you find yourself surprised that the Court even had to go to the trouble of spelling out these points, then you obviously don’t chase ambulances for a living. 

In another important decision, the Court this week announced that it will hear National Labor Relations Board v. Noel Canning.  That case will settle the legality of Obama’s non-recess “recess” appointments to the National Labor Relations Board (NLRB) and Consumer Financial Protection Bureau.  Appellate courts have invalidated Obama’s attempted appointments, yet those bureaucracies defiantly continue to issue rulings as if nothing had occurred.  That perfectly captures the lawlessness that defines Obama’s presidency, which in turn explains his loss of esteem among the American public described above. 

Fortunately, although there will always be some disappointments in rulings great and small, the Supreme Court generally remains a bulwark against that lawlessness.  Pending the possibility of replacement appointments by Obama or his successor, that is.  Elections matter.