A New Era for the Supreme Court

A New Era for the Supreme Court

The transformative potential of a shift in even one seat

October 10, 2016

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This article appears in the Fall 2016 issue of The American Prospect magazine. Subscribe here.

The 2016 term of the Supreme Court beginning in October marks its 48th year in a row under the leadership of a conservative chief justice appointed by a Republican president. That is more than one-fifth of the Court’s history. Saying that the Court is a political institution is now like saying there is a global economy: It is simply a fact.

The Court has gotten increasingly more conservative with each of the Republican-appointed chief justices—Warren E. Burger (1969–1986), William H. Rehnquist (1986–2005), and John G. Roberts Jr. (2005–present). All told, Republican presidents have appointed 12 of the 16 most recent justices, including the chiefs. During Roberts’s first decade as chief, the Court was the most conservative in more than a half-century and likely the most conservative since the 1930s.

In the five terms before Justice Antonin G. Scalia’s death in February, for the first time in American history the Court issued the majority of its ideological 5–4 rulings along party lines. The five conservative justices, appointed by Republicans, were Roberts plus Justices Anthony M. Kennedy, Scalia, Clarence Thomas, and Samuel A. Alito Jr. They regularly made up the majority. The four liberals, appointed by Democrats, were Justices Ruth Bader Ginsburg, Steven G. Breyer, Sonia M. Sotomayor, and Elena Kagan. They were regularly in dissent. Politics in some major cases appeared indistinguishable from law and threatened the Court’s legitimacy.

It’s no exaggeration to say that the Court has been at least as influential in the rightward shift of American law and policy as elections and the presidents and legislatures they elected. Often, interactions between Court decisions and executive and legislative politics result in constraints on government’s ability to address pressing problems and increase government’s perceived ineptitude.

Conservative decisions since the 1970s have undermined American democracy. They have turned an often unfair election system into a rigged one by elevating the role of money in politics, allowing state and local governments to make it harder for citizens to vote, permitting flagrant gerrymandering, and striking down the heart of the Voting Rights Act. In those ways and in others, they have also deepened American inequality. They have made it more difficult for individuals to bring civil-rights claims against government agencies as well as corporate officers and corporations. They have changed the meaning of equal protection as it applies to race under the Constitution, from anti-segregation, anti-stigma, and anti-subordination to anti-classification, so it is not easy for government to help a disadvantaged minority by taking race even modestly into account.

Key Court decisions have favored the interests of corporations over individuals and gutted the power of labor unions. They have amplified corporate power by narrowing the reach of antitrust remedies and by expanding the rights of corporate “persons” under the First Amendment, and have shielded corporations, banks, and their executives from criminal prosecution. They have weakened the rights of ordinary criminal suspects by using cramped readings of constitutional protections and expansive readings of law-and-order statutes, like the 20-year-old Antiterrorism and Effective Death Penalty Act, one of America’s worst laws.

The Court has given new life to states’ rights doctrines used to kill reforms in multiple areas. Many key rulings have been opportunistic, favoring federal preemption when it served substantively conservative or corporate goals, and states’ rights when that view was convenient. The Court has narrowed reproductive rights, other rights of women, and affirmative action. The Court overturned or gutted settled law in countless areas, including with a reinterpretation of the Second Amendment that undercut gun control by all levels of government.

In an important study, the scholars Lee Epstein, William M. Landes, and Judge Richard A. Posner analyzed about 2,000 Supreme Court decisions from 1946 to 2011. They found that the five conservatives of the Roberts Court until Scalia’s death were among the ten most conservative of the 36 justices who served in that span. The two justices in those 65 years most likely to favor business were Alito and Roberts, in that order. The Roberts Court was the most pro-business Court since World War II—and, by the reckoning of Court-watchers, the most pro-business since the pre-1937 Court.

(Source: Calculated by Lee Epstein from the U.S. Supreme Court Database)

There have been critical exceptions to the Court’s overall conservatism, of course. The most dramatic recent one was the 5–4 ruling in 2012 when Chief Justice Roberts joined the Court’s four liberal members to uphold the heart of the Affordable Care Act, the individual mandate requiring almost all Americans to obtain health insurance or pay a penalty. In its most recent term, the Court swung back toward the center in important areas of law.

Yet with President Barack Obama’s two relatively liberal appointees, Justices Sotomayor and Kagan, a possible third new justice in Judge Merrick B. Garland, and the prospect of one or more other appointments in a Hillary Clinton administration, the Court could be on the verge of a new liberal era, one that could put key areas of law and policy on a different path from what the conservative Court did.

Court reversals on many issues, from the meaning of equal protection under the Constitution and the measurement of racial discrimination under federal statutes, to the scope of the First Amendment’s protection for corporations and the breadth of its ban on government favoring a particular religion, could significantly change policy without congressional action.

With Justices Ruth Bader Ginsburg at 83, Anthony Kennedy at 80, and Stephen Breyer at 78—all possible retirees in the next four years—the Court should be among the most important issues in this year’s presidential and senatorial elections. If Donald Trump is elected and chooses one of the conservative judges he included on his short list of possible Supreme Court nominees, the Court majority could shift further to the right for another generation. But Democrats have a historic opportunity to change the balance of power on the Court. When Hillary Clinton campaigns with Democratic candidates for the Senate this fall, she is likely to stress that the Supreme Court and the future direction of American justice are at stake and that, to get liberal justices appointed, it is as important for the Democrats to retake the Senate as it is to hold the White House.

 

WHEN RICHARD M. NIXON CAMPAIGNED for president in 1968, he made the Supreme Court a major issue. His main TV ad portrayed the country as out of control, with crime on the rise. The Republican platform promised law and order in place of lawlessness, which Nixon blamed in part on Court decisions providing constitutional safeguards to criminal defendants, in his view at the expense of public safety.

Nixon practiced dog-whistle politics, as Michael Graetz and Linda Greenhouse recount in their new book The Burger Court and the Rise of the Judicial Right. He told a Southern audience, “I think some of our judges have gone too far in assuming unto themselves a mandate which is not there, and that is, to put their social and economic ideas into their decisions.” He linked crime with race and race with the judges who had gone too far. He pledged to appoint “strict constructionists” who would tighten up criminal law in particular.

In his first term as president, Nixon got the opportunity to appoint four justices: Warren E. Burger as Chief Justice in 1969; Harry A. Blackmun in 1970; and Lewis F. Powell Jr. and William Rehnquist in 1972. Burger was chief until 1986. A prevailing view of the Burger Court is that, as a result of the influence of moderate justices—Potter Stewart, Byron White, and Sandra Day O’Connor, plus Blackmun and John Paul Stevens, who drifted left and became moderate liberals in key cases—it did not reverse the direction of Supreme Court law in the Warren era. The legal scholar Vincent Blasi called this period “the counter-revolution that wasn’t.”

But as Graetz and Greenhouse show, the Burger Court began to move Supreme Court law to the right in prominent areas—with some weighty exceptions. The Court started to become a conservative institution again, as it had mainly been before the Warren Court.

Two of the most profound shifts came in civil rights and criminal justice. After Brown v. Board of Education, in which the Court ruled that segregated public schools were unconstitutional, two cases vie for place as the second-most important civil-rights case affecting schools: San Antonio Independent School District v. Rodriguez in 1973 and Milliken v. Bradley in 1974. Both addressed the issue of remedies for inadequate schools and, by 5–4 votes, both rejected Brown’s deep commitment to equality.

The first, brought by mostly Mexican American parents from a poor school district in Texas, was about the large discrepancy between the funding for and quality of public schools in poor and rich districts in the state, because of the reliance on local property taxes for about half the funding for public education. Spending per student by the poor district was three-fifths the amount of spending by the rich one: The property tax rate in the poor district was 24 percent higher, but the average value of property per student was 88 percent lower.

A special panel of three federal judges found the Texas financing system unconstitutional and ordered Texas to change its system so the amount spent on a child’s education did not depend on the neighborhood’s wealth. With Powell writing for the majority, the Court rejected the lower court’s main holdings. It found that the system provided every student with public education, while fostering local involvement through local determination of tax rates and education quality.

The 49 other states used the same system, so the ruling “momentously influenced the future of public education in America,” Graetz and Greenhouse write. “Rodriguez guaranteed that the resources of public schools would remain grossly unequal throughout the land” unless a ruling in state court prohibited that. The highest courts in many states called for funding increases, but no state ruling achieved what Rodriguez would have if decided the other way. The Supreme Court ruling “eviscerated the most promising alternative avenue for claims based on racial discrimination.”

The second contender, Milliken, with Burger writing for the majority, rejected the remedy of busing students across the line between a segregated urban school district and an integrated suburban district. In Detroit, a federal district judge had found that the school board segregated the city’s schools—by where it located them and how it drew school boundaries and attendance zones, among other ways. He ordered that the Detroit school district consolidate with some suburban districts and that they bus students between city and suburban schools. The U.S. Court of Appeals for the Sixth Circuit upheld the order.

The gist of the Supreme Court’s decision overturning those rulings was that the remedy to address Detroit’s segregation had to match the extent of the violation to the Constitution. Coming only 20 years after Brown, it marked the end of the startlingly brief period in which the Court, because of basic principles of fairness, promoted integrated schools.

In criminal justice, the Warren Court established and extended rules for police to follow: the ban on unreasonable searches and seizures under the Fourth Amendment, the privilege against self-incrimination under the Fifth Amendment, the right to counsel, and others. The Burger Court retained these rights and, in some cases, strengthened them. But as Harvard Law School’s Carol Steiker has explained, while the Court maintained these rules of conduct and reassured the public about the judiciary’s commitment to these rights, it significantly cut back on the consequences when police violate the rights—rules of decision for courts to use in enforcing the law.

(Photo: AP/Dennis Cook)

President Ronald Reagan announces the resignation of Chief Justice Warren E. Burger, far right, and nominates Justice William Rehnquist, second from right, to the post of Chief Justice and Antonin Scalia, left, as a member of the Supreme Court, during a briefing at the White House on June 17, 1986.

The Burger Court made dog-whistle rulings, Steiker found, with the public hearing the reassuring message about the affirmation of rights, while police heard the consequential message that sometimes there is no penalty for a violation of them because, for example, it is judged harmless. There was no counter-revolution about rights for criminal defendants, but there was, Steiker wrote, a “counter-revolutionary war against the Warren Court’s constitutional ‘remedies.’”

Under landmark rulings of the Warren Court, a key result was the exclusion of evidence obtained in violation of a right: The exclusionary rule became a staple of cop shows on TV. Steiker calls the results of some later Burger Court decisions “inclusionary rules”—“radical” cutbacks of Warren Court holdings that “permit the use at trial of admittedly unconstitutionally obtained evidence or that let stand criminal convictions based on such evidence” and brought retrenchment in criminal justice. The Court became, Steiker wrote, “less sympathetic to claims of individual rights and more accommodating to assertions of the need for public order.”

 

THE REHNQUIST COURT continued to maintain rights for criminal defendants while hollowing out remedies, in further retrenchment. With Rehnquist’s ascension to be chief justice, Scalia’s appointment to fill Rehnquist’s seat, and Thomas’s replacement of Thurgood Marshall, by 1991 the Court was more conservative than it had been under Burger. With Sandra Day O’Connor and Anthony Kennedy, there was a conservative majority of five that brought about what the legal scholars Jack M. Balkin and Sanford V. Levinson called “a fundamental shift in constitutional thought and constitutional doctrine.”

The new conservative majority ruled that states violating certain federal rights were immune from federal court judgments ordering them to pay money to compensate the victims of those violations, if the federal statute authorizing those lawsuits was based on the constitutional power to regulate commerce. They extended that logic to state court judgments, saying that private parties could not sue states for violations of the same federal laws there either—that would be an affront to states’ dignity. Previously, citizens could sue states when they violated the citizens’ constitutional rights. The Supreme Court had ruled in earlier decisions that, to reach significant national goals, Congress could waive the immunity of states in those kinds of suits.

The same five justices limited the power of Congress to pass civil-rights legislation: It could do so only if remedies matched the violations being corrected or prevented. In fact, the premise that race-specific remedies were warranted only when racial segregation was the result of state action overlooked a good deal of state action in the North that had produced segregated housing and thus schooling patterns.

The conservative majority extended this states’-rights logic to patents, when it struck down laws making a state liable for the intentional infringement of patents; to women who were victims of rape and related violence, when it struck down a law allowing them to sue the people who attacked them; to people who were victims of age discrimination, when it struck down a law allowing state employees to sue the state they worked for; and, eventually, to people who were victims of discrimination because of a disability, when it held that states were immune from lawsuits under the Americans with Disabilities Act. Balkin and Levinson observed that this was part of a “transformation in constitutional doctrine,” which involved “a fairly consistent application of a core set of ideological premises”—limits on federal power, promotion of states’ rights, and very narrow construction of federal civil-rights laws, among other emphases.

In most of the 5–4 rulings that restricted the power of Congress and strengthened the sovereignty of states, the majority included three justices whom Reagan appointed (O’Connor, Scalia, and Kennedy) and one he elevated (Rehnquist), with the fifth vote supplied by a justice appointed by George H.W. Bush (Thomas). Major changes in the law of federalism came after Reagan left office, but they followed the Reagan administration blueprint. They resulted from the administration’s emphasis on ideology as an essential criterion for federal judicial appointees, especially to the Supreme Court.

The Rehnquist Court’s 2000 ruling by 5–4 in Bush v. Gore was “not dictated by the law in any sense,” the University of Chicago’s David A. Strauss later wrote: The five conservatives flouted judicial restraint and states’ rights, by stopping the Florida Supreme Court from interpreting Florida law and halting the recount of the presidential election before it was finished. After determining that George W. Bush would be elected president, they declared their handiwork a non-precedent. (“Our consideration is limited to the present circumstances.”) That outcome led to the Roberts Court.

When Bush appointed Samuel Alito to replace Sandra Day O’Connor, the Supreme Court immediately shifted further to the right. O’Connor had been a member of the Rehnquist Court’s federalism five, but she was a moderate conservative. Alito was a movement conservative, as the Reagan administration called its young lawyers. At a discussion last February at the Center for American Progress, William Yeomans of American University’s Washington College of Law, speaking ironically, described Alito’s jurisprudence as pragmatic and flexible—so that he could use doctrines as necessary to arrive at the set of ideologically driven conclusions reflecting the conservative legal agenda.

Yeomans focused on Alito favoring restrictions to the exclusionary rule and defendants’ rights more generally; opposing privacy and the right of women to choose to have an abortion; opposing affirmative action in particular and race-consciousness in government programs in general; supporting a restrictive reading of the commerce power; favoring much more skeptical review of federal regulation; and enthusing about expansion of gun rights, among other positions.

By some measures, Rehnquist was the most conservative member of the Court since 1937. But in 5–4 cases where the split was based on ideology, Roberts was the fourth-most conservative justice between 1937 and 2012—and only the 22nd-most conservative in cases where there were three or fewer dissenting votes. Epstein, Landes, and Posner, who did the study leading to these conclusions, wrote about the chief justice: “Thus he is a reliable conservative in the most closely contested cases but moderate when his vote can’t change the outcome. This is consistent with a chief justice’s interest in being on the winning side in most cases; otherwise it looks as if he can’t control his Court.”

Roberts’s vote with the Court’s liberals in June of 2012 to uphold most of the Affordable Care Act was a momentous exception to his usual conservative voting, but on the grounds that the law was authorized under Congress’s power to levy taxes and was not valid under the Constitution’s Commerce Clause. Some commentators saw in Roberts’s vote his concern for the legitimacy of the Court, which he has stressed since his first year as essential to maintain so it is seen as a court rather than a political institution. The Court would have trashed its legitimacy if it had intervened in such an intensely political issue and, in the extreme opposite of judicial restraint, had overturned the act. But in Roberts’s opinion in the case, critics also saw a sly and sinister expansion of conservative doctrine on the question of what sort of laws violate the Commerce Clause, which might be invoked in the future to strike down statutes passed to protect the general welfare. A more liberal Court would almost certainly reject Roberts’s effort to resurrect a pre-1937 view of the Commerce Clause.

 

THE SIGNATURE RULING OF THE Roberts Court is the 5–4 decision in 2010 in Citizens United v. Federal Election Commission, where the conservative majority ruled that money equals speech and that limits on the independent spending of corporations, unions, and other organizations in political campaigns infringed on their right to free speech under the First Amendment.

A federal district court had ruled that the main federal law regulating campaign finance applied to a 90-minute campaign film, defining it as “a broadcast communication,” so corporate funds could not pay $1.2 million to a cable operator to let subscribers stream the film for free. The group, called Citizens United, made the film attacking Hillary Clinton as a candidate for president in 2008.

The questions the case framed for the Supreme Court were: Did the statute’s curb on broadcasts funded by corporations apply to video on demand? Did an exemption for some nonprofits from the statute’s rule limiting corporate spending cover ideological nonprofits like Citizens United?

(Photo: White House/Pete Souza)

President Obama and Vice President Biden pose for a photo prior to the investiture ceremony for Justice Sonia Sotomayor on September 8, 2009. From left: Associate Justices Samuel Alito, Ruth Bader Ginsburg, Anthony M. Kenney, John Paul Stevens, Chief Justice John Roberts, Obama, Sotomayor, Biden, Associate Justices Antonin Scalia, Clarence Thomas, Stephen Breyer, and retired Justice David Souter.

Rather than address those questions about the meaning of the statute, however, the Court decided to address whether, to prevent corruption in politics, the Constitution allows limits on independent spending by corporations and other organizations.

Citizens United represents judicial activism in the service of judicial supremacy of an extreme kind, swinging for the fences: The Court’s conservatives reached the constitutional issue they wanted to—upending a well-established principle of election law and unleashing a huge new avalanche of so-called independent expenditures by corporations in American politics.

Citizens United’s protection of the moneyed class in public life can be linked to a series of other decisions the Roberts Court has made protecting that class in the marketplace. For instance, the Court has taken an expansive view of the Federal Arbitration Act to permit clauses in contracts written by corporations that require their employees or customers to pursue any grievances they have in private arbitration rather than a public court. These also undermine class-action remedies.

But one in this line of cases, in 2013, called American Express v. Italian Colors, was an antitrust case, making it easier to see the broader importance of this area of law. American Express required merchants that wanted to accept its corporate and premium charge cards to accept as well basic American Express credit cards, at a fee 30 percent higher than fees of other credit cards.

The merchants each sought damages of about $5,000, but it would cost each merchant hundreds of thousands of dollars to try to prove an antitrust claim. The arbitration provision in their contracts kept them from sharing the cost or from consolidating their claims, so each was left with no way to press a claim. Italian Colors Restaurant and others argued that, by using its power in the market for the corporate and premium cards to require merchants to accept the third card’s higher costs, the company was subjecting them to a “tying arrangement,” violating federal antitrust law. The plaintiffs argued that, because of the strength of this claim, they should be allowed to proceed as a group. The Supreme Court, by 5–3, ruled that the merchants could not bring a class action against the company even on antitrust grounds: Each had signed a contract that required them to bring complaints through individual arbitration.

The University of Texas Law School’s Joseph R. Fishkin and William E. Forbath, in their work in progress called The Constitution of Opportunity, write, “What drives the Court’s view of arbitration and the [Federal Arbitration Act], in the end, is not a deeply considered understanding of congressional intent but a deeply rooted view about the place of private contract ordering in relation to public law.” The Court should have seen that the merchants were challenging a monopolist’s use of its power to get around anti-monopoly law. Instead, the conservative majority did not see the monopoly, treating American Express and each merchant as equal parties who had willingly entered into the contract with the arbitration clause, rather than as unequals, with Amex dictating the terms.

 

SOME OF THE COURT'S SWING BACK toward the center in important areas of law during its most recent term reflects the death of Justice Scalia, but also was the result of Justice Kennedy marking lines he was unwilling to cross and continuing his role as the occasional but crucial swing vote on the side of the Court’s liberals.

The most important ruling of the term was about abortion. By 5–3 in Whole Woman’s Health v. Hellerstedt, on the term’s last day, the Supreme Court struck down two provisions of a Texas statute that made it much more difficult for many women to have an abortion, without any medical benefits for them from these so-called health-and-safety provisions. Kennedy cast the critical vote. As the most senior of the justices in the majority, he chose Stephen Breyer to write for it. Breyer wrote the Court’s most significant statement about abortion in 24 years.

The ruling was widely greeted as strong evidence of a turn to the left by the Court, because it protected the right of abortion from the state provisions. But it was really a decision not to turn further to the right, a signal that the Court was satisfied with the restriction-favoring balance it struck a generation ago, which allowed states to enact all but the most extreme restrictions on women’s access to abortion. Texas had taken full advantage. From 1992 until 2011, the rate of abortion in the state dropped by 43 percent (in the same period, the rate throughout the U.S. dropped by 34 percent).

A key question was how the Court would apply the legal standard of that generation-old case, Planned Parenthood v. Casey: Would it retain respect for a woman’s right to choose an abortion or to carry her pregnancy to term, along with deference to a state that wanted to protect life throughout a pregnancy? Or would it let Texas’s anti-abortion politics further change American law, by restricting the Court’s protection of a woman’s right to choose and the dignity that represents?

With the replacement of the liberal Marshall by the conservative Thomas at the beginning of the 1991–1992 term, it had seemed quite possible in Casey that the Court led by the conservative Rehnquist would overturn Roe v. Wade and declare that there was no constitutional right for a woman to choose an abortion. The papers of Blackmun showed that Rehnquist drafted an opinion that would have overturned Roe.

Instead, Kennedy joined O’Connor and Souter, to make a moderate plurality of three. Out of respect for stare decisis—standing by a decision made—they reaffirmed “the essential holding” in Roe: Women retained the constitutional right to choose. With abortion, they wrote, “the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law.”

But the justices employed a different way of analyzing statutes regulating abortion. Roe had strongly protected the right to choose by requiring a state to meet a high standard in justifying any abortion-related regulation. Casey shifted the responsibility of proving a law was unconstitutional to supporters of abortion, with a test about “undue burden”—a legal restriction with “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Breyer’s 2016 opinion clarified that test, by focusing on how to calibrate the effect. He introduced a balancing of burdens and benefits.

One of the Texas provisions required that a doctor performing, or inducing, an abortion must have admitting privileges at a hospital within 30 miles. The other required that an “abortion facility” meet the “minimum standards” for ambulatory surgical centers under Texas law—specifications about the size of the nursing staff, the dimensions of the building, and so on.

Neither requirement conferred any benefit, Breyer wrote. Doctors providing abortions were already required to have admitting privileges at a local hospital or a working arrangement with a doctor who did, “to ensure the necessary back up for medical complications.” And, as the factual record in the case showed, “abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.”

In addition, the factual record showed, ambulatory surgical centers would not significantly lower the already low risks of abortion. Between 2001 and 2012 in Texas, five deaths occurred as a result of abortions—“or about one every two years,” Breyer wrote. The risk of death during childbirth nationally was 14 times as great. On the other hand, the record was full of evidence about substantial burdens. When Texas began to enforce the admitting-privileges requirement, the number of clinics in the state providing abortions was cut in half, from about 40 to about 20.

Breyer concluded: “In the face of no threat to women’s health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered.” All of this was likely to be “harmful to, not supportive of, women’s health.”

Before a second central 2016 end-of-term decision, Fisher v. University of Texas, proponents of affirmative action were braced for the worst, given previous rulings signaling its end. But the Court decided that a Texas admissions plan that took race into account was constitutional. Kennedy was the author of the 4–3 decision. In 2003, he had dissented in the most recent previous case upholding the use of racial criteria in higher-education admissions. In 28 years on the Court, he had never voted for an affirmative-action program. This time, he wrote that universities deserve some leeway in pursuing multiple goals in assembling a student body—like ending racial stereotypes and preparing students for a diverse society—as long as a university’s goals are “sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.”

This came on the heels of Obergefell v. Hodges, the celebrated case at the close of the 2015 term, with Justice Kennedy writing for a 5–4 majority, in which the Court ruled that the fundamental right to marry under the Constitution applies to people of the same sex. But Kennedy’s votes in the same-sex marriage, affirmative action, and abortion cases, while welcome and, in my view, correct, should not be taken as signs of a shift to the left by the Court as a whole. Last term, the Court’s decisions in general were measurably more conservative than they were the term before. And the decisions of that term in general, while seemingly more liberal than in any term of the Republican Court going back five decades, were also strikingly narrow and, in critical cases, notably less liberal than they were reported as being.

In 2015, in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Kennedy joined the liberals in upholding a key part of the Fair Housing Act, which protects against discrimination in renting, buying, or getting financing for housing. The relevant part prohibits policies adopted for an ostensibly neutral reason that have a “disparate impact,” or discriminatory effect, on housing opportunities for minorities. Texas’s extreme goal was to get the Court to narrow the statute by saying a plaintiff would have to prove that the discrimination was intentional. To keep that from happening, it was very likely that the liberals who joined Kennedy in the housing decision had to agree to a weak endorsement of disparate-impact lawsuits and to new limitations on them, which Kennedy spelled out. As in his affirmative-action opinion this past June, Kennedy’s strongest language in the housing opinion warned against overuse of the race-conscious remedy and encouraged vigilance against policies that reduce citizens to “nothing more than their race.”

 

THE JUSTICES COMPRISING THE MAJORITY on the most conservative Court in 80 years did not move to the left during the last two terms. But when Justice Scalia died in the middle of last term, leaving the Court with equal numbers of conservatives and liberals, the Court and its dynamics changed instantly. It entered a zone of uncertainty—for the justices, about the Court’s center of power; for the country, about the Court’s political character. One of the most significant decisions of the term was its 4–4 tie in the major case about Obama’s 2014 executive order on immigration. The tie illustrated how uncertain the Court’s near-term future is.

The central question of the immigration case was whether, by giving immigration officers the option of deferring the deportations of some immigrants in this country illegally, the Obama program gave them legal immigration status and a path to citizenship. In immigration law, “legal status” refers to the status of being accepted in the U.S. under federal law—as a documented immigrant, a non-immigrant with a temporary visa, or someone on parole in the immigration system. The Obama executive order, the government said explicitly, did “not confer any form of legal status in this country” and the deferred deportation policy could “be terminated at any time at the agency’s discretion.”

(Photo: Flickr/MitchellShapiroPhotography)

“Unlawful presence” is the status of immigrants who have not been formally admitted to the country or granted parole, or who have stayed longer than the time they were granted. “Lawful presence” describes the circumstance of an immigrant lacking legal status, when the government chooses not to enforce the law against him or her—as the government put it, “to countenance that person’s continued presence in the United States” until it decides not to. Lawful presence does not mean legal presence. It is not a synonym for legal status.

But in the lawsuit brought by Texas and eventually 25 other red states, a federal district judge in Texas accepted the bumper-sticker argument that lawful presence equals legal status and barred the program from going into effect throughout the United States. The U.S. Court of Appeals for the Fifth Circuit upheld that decision twice by 2 to 1. The Supreme Court upheld it as a result of its 4–4 split. At every step of the way, the judges appointed by Republicans voted the way Republicans favored and the judges appointed by Democrats voted the way Democrats favored. A case about the most ideologically charged subject in American life turned into one in which politics and law could not be differentiated, making law seem another venue of politics and the judges who made the legal decisions seem like politicians in robes.

 

A LIBERAL FANTASY IS THAT A COURT with a new liberal majority would reverse what the old conservative majority did in the Shelby County case of 2013, when it struck down the heart of the Voting Rights Act. The 1965 law required preclearance of changes in voting systems by states, or parts of states, with histories of discriminating against black and other minority voters. Chief Justice Roberts, writing for the majority, contended that preclearance was no longer necessary, because voting practices had changed. But as soon as the Shelby County decision came down, states and localities began reverting to discriminatory tactics.

Even so, it would be extremely unusual for the Court to reinstate a provision of law that had been struck down as unconstitutional by a prior Court—and impossible for the Court to do that in this case, unless the Justice Department tries to force the issue by insisting on preclearance from designated jurisdictions, in defiance of the Shelby County ruling. That has not happened and is highly unlikely to. Otherwise, there is no way for the Court to reach the issue. And unless Democrats take back both houses, Congress is not going to revise the Voting Rights Act anytime soon.

Nonetheless, a federal judge can require preclearance under another section of the Voting Rights Act that remains good law, if the judge finds that voting discrimination was intentional. This issue is coming up in cases about “voter denial,” the number of which has surged, among other reasons, because Shelby County struck down the means of blocking denials. A liberal majority would likely uphold that requirement. A conservative majority would be unlikely to find intentional discrimination often, but it would also be unlikely to strike down that part of the law. Stanford Law School’s Pamela S. Karlan, who worked on voting-rights cases in the Obama Justice Department, argues in a forthcoming law-review article that “a nascent revival of judicial concern with poverty” is strengthening the tools judges have for rooting out and rejecting manipulations of voting rules that exclude poor minority voters. A liberal majority would likely uphold this use of such tools. A conservative majority would be unlikely to.

The summer decision by the U.S. Court of Appeals for the Fourth Circuit that struck down key parts of a North Carolina voting law was a reminder that the Voting Rights Act, coupled with the Constitution, contains provisions that need no strengthening to keep states from imposing requirements that would make it difficult for people to vote who are poor or members of a minority group. Based on a “massive record,” the Fourth Circuit held that the state’s legislature, “with almost surgical precision” and “with discriminatory intent,” enacted five restrictions designed to deny African Americans the right to vote. The Supreme Court’s 4–4 decision not to stay the circuit’s ruling so some of the restrictions could go into effect made explicit the difference that Justice Scalia’s death made in this area of civil rights. While there was a point of disagreement among the Court’s remaining conservatives, the four voted in favor of the state’s request. But none of the four liberals—all of them dissenters in Shelby County—provided the fifth vote needed to grant the stay.

A liberal majority on the Supreme Court would likely make a profound difference in cases about the relationships between money and power in commerce and in politics. It is unlikely that the Court will reconsider its ruling about forced arbitration in Italian Colors anytime soon, but it will have opportunities to consider the logic of that decision applied to employment contracts, because there is a fundamental split in the federal circuits about that.

Until this year, the uniform view among four federal circuit courts was that employers, like credit-card issuers, banks, cellphone-service providers, and many other companies selling to consumers, could make individuals give up legal remedies, like the option of taking the company to court. But in May, in an important opinion written by Chief Judge Diane P. Wood, the Seventh Circuit held that an employer couldn’t force an employee to give up the remedy of a class action. The opinion said that doing so violates a section of the National Labor Relations Act guaranteeing employees the right to form unions, bargain collectively, and “engage in other concerted activities” for their “mutual aid or protection,” like bringing class-action lawsuits. The labor law doesn’t conflict with the Federal Arbitration Act, the judge wrote, since the arbitration law has a clause saying that it cannot violate contract law. Since the labor law makes the arbitration agreement illegal, that part of the contract is unenforceable. The issue is important enough, and the circuit split serious enough, that the Supreme Court is likely to consider the matter. A liberal majority is likely to uphold the view of the Seventh Circuit. A conservative majority is not.

Also in May, the Consumer Financial Protection Bureau proposed rules that would prohibit mandatory arbitration clauses denying consumers their day in court. The rules are based on a comprehensive report the agency released in 2015, which found that credit cards accounting for more than half of card debt and banks holding almost half of insured deposits included clauses in their contracts with consumers requiring the use of arbitration to resolve problems with the companies—and reducing consumers’ likelihood of getting financial redress. This is the most prominent example of a federal agency restricting forced arbitration, and each of the restrictions will almost certainly be challenged in court. Soon enough, the Supreme Court will likely review the bureau’s rules. A liberal majority is likely to uphold the CFPB’s view. A conservative majority is not.

It is unlikely that, anytime soon, the Court will reverse what the conservative majority did in Citizens United and reinstate the limits on independent spending by corporations, unions, and other organizations in political campaigns. But liberal groups are talking about how to limit the influence of super PACs, which, as Fred Wertheimer of Democracy 21 commented, are “the biggest single problem” to come out of that case. In 2010, two months after Citizens United, the U.S. Court of Appeals for the District of Columbia Circuit struck down the $5,000 limit for contributions from individuals to independent political groups. The court said that the only interest that could justify the limit is “preventing corruption or the appearance of corruption” and, in Citizens United, “the Court held that the government has no anti-corruption interest in limiting independent expenditures.” That was because the Court narrowed the definition of corruption to mean only quid-pro-quo corruption—a direct exchange of an official act for money. But the Supreme Court did not review the appeals court decision, and what the country has learned in the past six years about the consequences of Citizens United could lead a Court with a liberal majority to take a case about, say, a state ballot initiative calling for a $5,000 limit for contributions from individuals to independent political groups.

In 2014, in McCutcheon v. Federal Election Commission, the Court applied its narrow definition of corruption to aggregate limits on contributions from individuals to political candidates, political parties, and political action committees and struck down those limits on the grounds that they did little to nothing to combat that form of corruption, “while seriously restricting participation in the democratic process.” In dissent, however, Justice Breyer wrote about his view of the Court’s decision: “Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.”

Breyer’s prediction about the loophole and the millions from single individuals that are gushing through it has come true, with the effect he explained in his dissent: “Where enough money calls the tune, the general public will not be heard.” He elaborated, “Corruption breaks the constitutionally necessary ‘chain of communication’ between the people and their representatives.” He explained why “the kinds of corruption that can destroy the link between public opinion and governmental action extend well beyond” what the old conservative majority set out in Citizens United: They include what Breyer called “privileged access to and pernicious influence upon elected representatives.”

A test of contribution limits before a liberal majority would provide the opportunity for the Court to define corruption again as it was defined for 34 years until Citizens United. It would provide the opportunity for the Supreme Court to begin redefining itself as a safeguard, not of the moneyed class and its prerogatives, but of popular self-government and American democracy.

 

THE COURT IS ATTUNED to the verdicts of politics and to efforts of citizens to move public opinion and change the law. The Court’s 2015 ruling in the same-sex marriage case was the product of a 20-year citizen campaign, in politics and law. The Court’s 2008 ruling that guarantees a right of individuals to own guns for personal use was the product of a 30-year citizen campaign.

Citizens have the power to determine what the Constitution stands for today. They can do that through extended efforts, like the successful same-sex marriage movement or the growing movement to overturn Citizens United by constitutional amendment. They can do that with their vote for president.

If she is elected, Hillary Clinton will have the chance to transform the Court and its application of the Constitution. She would likely appoint justices who believe that the Court must protect the rights of employees and consumers as well as those of corporations, and must protect the rights of individuals as well as the security of the state. She would likely look for justices who favor equality as well as liberty, real pragmatism over ersatz originalism, and law as a fair process rather than a raw assertion of power. Her election would give the Court a progressive majority, for the first time in half a century.

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