“More Consequential And Far-Reaching”: Why The Supreme Court Should Be The Biggest Issue Of The 2016 Campaign
Supreme Court justice and pop culture icon Ruth Bader Ginsburg left the hospital yesterday after having a heart stent implanted and expects to be back at work Monday. Despite various health issues over the years, Ginsburg insists that she is still of sound body at age 81 (her mind isn’t in question) and has no plans to retire before the end of President Obama’s term to ensure a Democratic replacement. If she keeps to that pledge, and presuming there are no other retirements in the next two years, the makeup of the Supreme Court could be a bigger campaign issue in 2016 than ever before. It certainly ought to be.
Ordinarily, the Supreme Court is brought up almost as an afterthought in presidential campaigns. The potential for a swing in the court is used to motivate activists to volunteer and work hard, and the candidates usually have to answer a debate question or two about it, which they do in utterly predictable ways (“I’m just going to look for the best person for the job”). We don’t usually spend a great deal of time talking about what a change in the court is likely to mean. But the next president is highly likely to have the chance to engineer a swing in the court. The consequences for Americans’ lives will probably be more consequential and far-reaching than any other issue the candidates will be arguing about.
As much as we’ve debated Supreme Court cases in recent years, we haven’t given much attention to the idea of a shift in the court’s ideology because for so long the court has been essentially the same: divided 5-4, with conservatives having the advantage yet liberals winning the occasional significant victory when a swing justice moves to their side. And though a couple of recent confirmations have sparked controversy (Samuel Alito and Sonia Sotomayor were both the target of failed attempts to derail their nominations), all of the retirements in the last three presidencies were of justices from the same general ideology as the sitting president. The last time a new justice was radically different from the outgoing one was when Clarence Thomas replaced Thurgood Marshall — 23 years ago.
Whether a Democrat or a Republican wins in 2016, he or she may well have the chance to shift the court’s ideological balance. Ginsburg is the oldest justice at 81; Antonin Scalia and Anthony Kennedy are both 78, and Stephen Breyer is 76. If the right person is elected and the right justice retires, it could be an earthquake.
Consider this scenario: Hillary Clinton becomes president in 2017, and sometime later one of the conservative justices retires. Now there would be a liberal majority on the court, a complete transformation in its balance. A court that now consistently favors those with power, whether corporations or the government, would become much more likely to rule in favor of workers, criminal defendants and those with civil rights claims. Or alternately: The Republican nominee wins, and one of the liberal justices retires. With conservatives in control not by 5-4 but 6-3, there would be a cascade of even more conservative decisions. The overturning of Roe v. Wade would be just the beginning.
Look at what the Supreme Court has done recently. It gutted the Voting Rights Act, said that corporations could have religious beliefs, simultaneously upheld and hobbled the Affordable Care Act, struck down a key part of the Defense of Marriage Act and moved toward legalizing same-sex marriage, all but outlawed affirmative action, gave corporations and wealthy individuals the ability to dominate elections and created an individual right to own guns — and that’s just in the last few years.
Whether you’re a Democrat or a Republican, there is probably no single issue you ought to be more concerned about in the 2016 campaign than what the court will look like after the next president gets the opportunity to make an appointment or two. The implications are enormous. It’s not too early to start considering them.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, November 28, 2014
Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, declared surrender Thursday. For decades, she argued that the Court was a higher form of government, engaged in Law, not just politics. Now she has decided that the justices are politicians in robes.
The straw that broke her faith? The Court’s decision to review King v. Burwell, a case confirming that Obamacare subsidies can go to people in insurance exchanges that the federal government sets up in states that haven’t created the exchanges themselves. Without those subsidies, the worst-case scenario has Obamacare entering a fiscal death spiral. The best case is that it would be another body blow to a law that is managing to work despite design flaws and relentless opposition.
Greenhouse is absolutely right that the Court’s hasty grab at a hot-button case it doesn’t need to decide is unseemly and partisan-feeling. And as Greenhouse is a very smart and sincere person who loves the Court and the law, her crie de coeur is striking.
But the Supreme Court has been political since the day it was born. It’s just that the way it is political today is a symptom of the nastiness and futility of our politics.
Cast an eye over the history of the Supreme Court, and you will see no golden age of apolitical judging. Today’s conservative judicial activists—especially the older generation, such as Justices Scalia and Thomas—came onto the Court in reaction against an earlier generation of liberal activists. The liberals had established abortion rights, extended constitutional equality to women, increased the rights of criminal defendants, and briefly declared the death penalty unconstitutional.
The conservatives saw all of this as blatantly political activism. They sought control of the Court to restore the Constitution and protect law from politics—at least as they understood it. Now those conservative restorationists are the partisan activists who have broken Linda Greenhouse’s faith.
And what about those liberal activists who made the young Scalia and Thomas so indignant? They were the children of another revolution. Their predecessors—and some of them—also came onto the Court to restore the Constitution and save the law from politics. Only the activists they overthrew were conservatives: anti-New Deal justices who upheld “economy liberty” and “limited government” by striking down minimum-wage laws and the first wave of Franklin Roosevelt’s legislation.
And so it goes, back through judicial struggles over Reconstruction, slavery, and the now-esoteric bloodletting of the early nineteenth century, which pivoted on questions like the constitutionality of the national bank. Someone has always been trying to save the law from politics and restore the Constitution. But when you look at it clearly, saving the law from politics turns out to be a thoroughly political job.
First you have to convince people to accept your version of the boundary between law and politics. Then you have to get judges onto the bench who agree with you. The history of law is the history of politics, and vice-versa.
So why do so many smart people believe in the difference between law and politics? Why do they sincerely try to restore, or preserve, the line between the two, and get heartbroken when the line fails?
It’s not just naivete. The special role of the American courts, particularly the Supreme Court, is to administer principles that have won so decisively in politics that they get taken off the table.
The triumph of the New Deal brought in a generation of judges who implemented new principles—above all, the legitimacy of the regulatory and welfare state—across the legal system as the shared framework of a national consensus. The era of the Civil Rights Movement and the Great Society led a generation of elite liberals, including many of the current Justices, to embrace broader principles of personal liberty and equality, which they saw as perfecting the American social compact. They were busily implementing these in cases like Roe v. Wade when a right-wing insurgency took them by surprise.
The fight that started then has only become more pitched. There’s no line between law and politics now because our politics is too divided to generate one. We cannot begin to agree which issues should be taken off the table and handed to courts.
The conservatives on the Supreme Court are aligned, intellectually, politically, and institutionally, with lawyers and activists who want to dismantle much of the regulatory and welfare state and stop or reverse the extension of civil rights and liberties.
The liberals are aligned with those who have opposite aims: preserving and extending civil rights and upholding the regulatory state as a legitimate aspect of government. The country is divided, sharply and unrelentingly, over the same questions. What one side tries to take off the table, to turn from “politics” into “law,” the other side is always trying to grab back. With every grab, the idea that law and politics are separate becomes harder for anyone to believe.
Politics gives law its premises, its basic commitments. Law has its own kind of integrity, based in applying principles consistently, integrating competing goals, giving the same words the same meaning in different places and explaining why not when it doesn’t. If you have worked closely with judges who practice this craft, you know it isn’t just politics, any more than architecture is just drawing.
Law, in this sense, is essential work, but its fabric gets torn when the premises change—like ripping a weaving project suddenly into a new kind of garment. It changed in the Civil Rights era, and in the New Deal. And then it stabilized. Now it is not stabilizing, and the constant contest at all levels, from basic premises to craft, means that, increasingly, everything feels partisan. All that is solid melts into fetid air.
We’ve been denied what Americans seem perennially to wish for—a Supreme Court that is better than we are—surer, clearer, wiser and more unified. It turns out that was really a wish to be a better version of ourselves. On the one hand, it’s good to be rid of the illusion and stand on the real ground of democratic politics. On the other hand, what broken and disappointing ground it is.
By: Jedediah Purdy, Robinson O. Everett Professor of Law at the Duke University School of Law; The Daily Beast, November 13, 2014
“Who Are The Judicial Activists Now?”: People Like Ted Cruz Will Never Stop Screaming Judicial Activism
As is regularly the case in American politics, you have to hand it to Ted Cruz: His reaction to the Supreme Court’s order on same-sex marriage was the best one I came across Monday for sheer outrage-iness. “Judicial activism at its worst!” he thundered (okay, the exclamation point is mine). This, remember, in response to an inaction. The Court did exactly nothing. And now that’s judicial activism.
In fact, the Court took a pass, one presumes, because there weren’t two circuit-court decisions before it that presented conflicting legal interpretations of statute. In the absence of such a conflict, the Court did exactly what most experts I’ve read and spoken to over the last few months predicted it would do. But to Cruz, it’s “astonishing.” Ditto that the Court acted (or in-acted) “without providing any explanation whatsoever.” Which it never does in such instances, but never mind.
People like Cruz will never stop screaming judicial activism. No, wait: They will stop screaming judicial activism, at least on the question of same-sex marriage; and they will stop doing so sooner rater than later. This will constitute a major victory for the forces of light, one very much worth marking and thinking back over.
Ever since, well, Brown v. Board of Education, and probably before, conservatives have complained about judges making law against the will of the majority of voters. The critique extends into nearly every little crevice and lacuna of our civic life. Roe v. Wade was legislating from the bench; affirmative action; of course taking God out of the classroom; but basically anything any court did that conservatives didn’t approve of.
And let’s admit it—on at least the abstract level, the complaint has often had merit. I mean, there can be little doubt that public opinion in Dixie in 1954 opposed the integration of the schools. So the Court of 1954 was indeed making law from the bench. And thank God for it, since the problem is that public opinion was wrong. Not just wrong like “I think I’m not putting enough salt in my grits” wrong, but immorally wrong. What’s a court to do in such a case? Many forests have been sacrificed so that various scholars could take up this question, but the answer is really quite short and simple: The right thing.
And so liberalism has lived now with decades of such criticisms from conservatives, with the understanding that it’s far better to have won the right in question from a court than not to have won it at all—and the understanding that out there in America, yes, the backlash against these judges and the policies that grew from their decisions was probably brewing.
But same-sex marriage is different for two reasons. First, the amazing and oft-commented upon speed at which public opinion has flipped. And second, the fact that if the legal consensus can be said to be coming down on one side or the other, it’s clearly coming down on the side of same-sexers having the same constitutional matrimonial rights that the rest of us have. When federal judges in Oklahoma and Utah say it, it ain’t judicial activism, folks. It’s, you know, the more-or-less-impossible-to-deny law.
So the process by which same-sex marriage has advanced in this country hasn’t been overwhelmingly judicial at all. Until the Court’s announcement Monday, in fact, the tally was that gay marriage became legal by court decision in 13 states, and by the will of the people in 11 (legislative action in eight, popular referendum in three). And in most of the states where the change happened through the courts, the issue is decreasing in controversy, and public opinion is coming along.
You may remember that Iowa was the first unexpected heartland state where the state Supreme Court made gay marriage legal, back in 2009. It’s true that three judges who so ruled were removed from the bench in judicial retention elections in 2010. But by 2012, when the “values” crowd went after a fourth, they walked away scalpless: Judge David Wiggins retained his seat by a landslide 10-point margin. The temperature had cooled. Today, polling shows that public opinion in the state is still divided on same-sex marriage but is firmly against any kind of state constitutional amendment that would ban the practice.
So now, after what the Court did Monday, same-sex marriage is going to extend into 11 new states. It seems fair to say that majorities are against gay marriage in most of these states (the aforementioned Utah and Oklahoma, plus Kansas, Indiana, West Virginia, and the Carolinas). We’re going to see the usual skirmishes and hear the predictable sound bites. In political terms, if you’re a liberal who wants to read the tea leaves, keep an eye trained on the North Carolina Senate race.
Incumbent Democrat Kay Hagan is steadily but narrowly leading GOP challenger Thom Tillis. Hagan backs same-sex marriage. But the state voted overwhelmingly against it two years ago in a referendum. And now, as a part of the Fourth Judicial Circuit, North Carolina is about to have the sinful practice foisted on it. Public opinion in the state still runs strongly against same-sex marriage. I think we can reasonably expect Tillis to double down on the issue, and it would be horrible to see Hagan lose because of it.
It’ll take time in these states, but the same thing will happen in them as is happening in Iowa. People will adjust. Gay couples will marry. Straight couples will see that their own marriages were somehow not sullied after all.
This is the core dilemma for conservatives on same-sex marriage: The more widespread its practice, the more accepted it becomes. This is the exact opposite of abortion and affirmative action, two red-hot issues on which the right has used the “judicial activism” charge to great effect in recent history. If you think abortion is murder, then the more widespread its practice, the more aghast you are. If you oppose racial preferences, then ditto. But that isn’t how same-sex marriage works. It takes nothing away from heterosexual couples, or for that matter anyone.
Eventually, the Supreme Court will rule 5-4 (with Kennedy) or maybe even 6-3 (with Roberts—not completely impossible) in favor of gay marriage, because the law is clear, and because the Court isn’t going to tell many thousands of married couples in 30 states that they’re suddenly not married. Judicial activism? No. Just the right thing. The judicial activists will be those, led by their godhead Scalia, who will try to invent new ways to march backwards while pretending that they themselves aren’t trying to dictate morality from the bench. And the charge of judicial activism, which hurt liberalism because it resonated with a resentment that millions of average Americans felt, will lose its sting soon enough.
By: Michael Tomasky, The Daily Beast, October 7, 2014
Dartmouth Professor Randall Balmer argues convincingly that the origin of the religious right as a political force stemmed from opposition to school desegregation rather than opposition to the Roe v. Wade decision. I don’t think it is well known that evangelicals were largely silent about the Roe ruling at the time it was issued, nor that some of the most influential evangelical leaders at the time were supportive of the ruling.
Today, evangelicals make up the backbone of the pro-life movement, but it hasn’t always been so. Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.
When the Roe decision was handed down, W. A. Criswell, the Southern Baptist Convention’s former president and pastor of First Baptist Church in Dallas, Texas—also one of the most famous fundamentalists of the 20th century—was pleased: “I have always felt that it was only after a child was born and had a life separate from its mother that it became an individual person,” he said, “and it has always, therefore, seemed to me that what is best for the mother and for the future should be allowed.”
Although a few evangelical voices, including Christianity Today magazine, mildly criticized the ruling, the overwhelming response was silence, even approval. Baptists, in particular, applauded the decision as an appropriate articulation of the division between church and state, between personal morality and state regulation of individual behavior. “Religious liberty, human equality and justice are advanced by the Supreme Court abortion decision,” wrote W. Barry Garrett of Baptist Press.
It was actually a ruling by the DC District Court upholding the Internal Revenue Service’s decision to revoke Bob Jones University’s tax exemption that convinced evangelical leaders Jerry Falwell and Paul Weyrich to rally the religious right against President Jimmy Carter’s reelection. They could hardly make Bob Jones’ anti-miscegenation their rallying call, however, so the modern-day Republican Party was founded on an evangelical “awakening” on what had formerly been considered an issue only for “papists.”
Today, the party of Dwight Eisenhower and Everett Dirksen is the party of Jerry Falwell and Paul Weyrich. The party of Lincoln is now the party of voter ID laws.
By: Martin Longman, Washington Monthly Political Animal, May 28, 2014
“Acknowledging The Usual Suspects”: Justice Ginsburg Says The Supreme Court Is “One Of The Most Activist”
Justice Ruth Bader Ginsburg, 80, vowed in an interview to stay on the Supreme Court as long as her health and intellect remained strong, saying she was fully engaged in her work as the leader of the liberal opposition on what she called “one of the most activist courts in history.”
In wide-ranging remarks in her chambers on Friday that touched on affirmative action, abortion and same-sex marriage, Justice Ginsburg said she had made a mistake in joining a 2009 opinion that laid the groundwork for the court’s decision in June effectively striking down the heart of the Voting Rights Act of 1965. The recent decision, she said, was “stunning in terms of activism.”
Unless they have a book to sell, Supreme Court justices rarely give interviews. Justice Ginsburg has given several this summer, perhaps in reaction to calls from some liberals that she step down in time for President Obama to name her successor.
On Friday, she said repeatedly that the identity of the president who would appoint her replacement did not figure in her retirement planning.
“There will be a president after this one, and I’m hopeful that that president will be a fine president,” she said.
Were Mr. Obama to name Justice Ginsburg’s successor, it would presumably be a one-for-one liberal swap that would not alter the court’s ideological balance. But if a Republican president is elected in 2016 and gets to name her successor, the court would be fundamentally reshaped.
Justice Ginsburg has survived two bouts with cancer, but her health is now good, she said, and her work ethic exceptional. There is no question, on the bench or in chambers, that she has full command of the complex legal issues that reach the court.
Her age has required only minor adjustments.
“I don’t water-ski anymore,” Justice Ginsburg said. “I haven’t gone horseback riding in four years. I haven’t ruled that out entirely. But water-skiing, those days are over.”
Justice Ginsburg, who was appointed by President Bill Clinton in 1993, said she intended to stay on the court “as long as I can do the job full steam, and that, at my age, is not predictable.”
“I love my job,” she added. “I thought last year I did as well as in past terms.”
With the departure of Justice John Paul Stevens in 2010, Justice Ginsburg became the leader of the court’s four-member liberal wing, a role she seems to enjoy. “I am now the most senior justice when we divide 5-4 with the usual suspects,” she said.
The last two terms, which brought major decisions on Mr. Obama’s health care law, race and same-sex marriage, were, she said, “heady, exhausting, challenging.”
She was especially critical of the voting rights decision, as well as the part of the ruling upholding the health care law that nonetheless said it could not be justified under Congress’s power to regulate interstate commerce.
In general, Justice Ginsburg said, “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”
The next term, which begins on Oct. 7, is also likely to produce major decisions, she said, pointing at piles of briefs in cases concerning campaign contribution limits and affirmative action.
There is a framed copy of the Lilly Ledbetter Fair Pay Act of 2009 on a wall in her chambers. It is not a judicial decision, of course, but Justice Ginsburg counts it as one of her proudest achievements.
The law was a reaction to her dissent in Ledbetter v. Goodyear Tire and Rubber Company, the 2007 ruling that said Title VII of the Civil Rights Act of 1964 imposed strict time limits for bringing workplace discrimination suits. She called on Congress to overturn the decision, and it did.
“I’d like to think that that will happen in the two Title VII cases from this term, but this Congress doesn’t seem to be able to move on anything,” she said.
“In so many instances, the court and Congress have been having conversations with each other, particularly recently in the civil rights area,” she said. “So it isn’t good when you have a Congress that can’t react.”
The recent voting rights decision, Shelby County v. Holder, also invited Congress to enact new legislation. But Justice Ginsburg, who dissented, did not sound optimistic.
“The Voting Rights Act passed by overwhelming majorities,” she said of its reauthorization in 2006, “but this Congress I don’t think is equipped to do anything about it.”
Asked if she was disappointed by the almost immediate tightening of voting laws in Texas and North Carolina after the decision, she chose a different word: “Disillusioned.”
The flaw in the court’s decision, she said, was to conclude from the nation’s progress in protecting minority voters that the law was no longer needed. She repeated a line from her dissent: “It is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Chief Justice John G. Roberts Jr. wrote the majority opinion, and he quoted extensively from a 2009 decision that had, temporarily as it turned out, let the heart of the Voting Rights Act survive. Eight members of the court, including Justice Ginsburg, had signed the earlier decision.
On Friday, she said she did not regret her earlier vote, as the result in the 2009 case was correct. But she said she should have distanced herself from the majority opinion’s language. “If you think it’s going to do real damage, you don’t sign on to it,” she said. “I was mistaken in that case.”
Some commentators have said that the two voting rights decisions are an example of the long game Chief Justice Roberts seems to be playing in several areas of the law, including campaign finance and affirmative action. Justice Ginsburg’s lone dissent in June’s affirmative action case, leaving in place the University of Texas’ admissions plan but requiring lower courts to judge it against a more demanding standard, may suggest that she is alert to the chief justice’s apparent strategy.
Justice Ginsburg is by her own description “this little tiny little woman,” and she speaks in a murmur inflected with a Brooklyn accent. But she is a formidable force on the bench, often asking the first question at oral arguments in a way that frames the discussion that follows.
She has always been “a night person,” she said, but she has worked even later into the small hours since her husband, Martin D. Ginsburg, a tax lawyer, chef and wit, died in 2010. Since then, she said, there is no one to call her to bed and turn out the lights.
She works out twice a week with a trainer and said her doctors at the National Institutes of Health say she is in fine health.
“Ever since my colorectal cancer in 1999, I have been followed by the N.I.H.,” she said. “That was very lucky for me because they detected my pancreatic cancer at a very early stage” in 2009.
Less than three weeks after surgery for that second form of cancer, Justice Ginsburg was back on the bench.
“After the pancreatic cancer, at first I went to N.I.H. every three months, then every four months, then every six months,” she said. “The last time I was there they said come back in a year.”
Justice Ginsburg said her retirement calculations would center on her health and not on who would appoint her successor, even if that new justice could tilt the balance of the court and overturn some of the landmark women’s rights decisions that are a large part of her legacy.
“I don’t see that my majority opinions are going to be undone,” she said. “I do hope that some of my dissents will one day be the law.”
She said that as a general matter the court would be wise to move incrementally and methodically. It had moved too fast, she said, in Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The court could have struck down only the extremely restrictive Texas law before it.
“I think it’s inescapable that the court gave the anti-abortion forces a single target to aim at,” she said. “The unelected judges decided this question for the country, and never mind that the issue was in flux in the state legislatures.”
The question of same-sex marriage is also in flux around the nation. In June, the court declined to say whether there was a constitutional right to same-sex marriage, allowing the issue to percolate further. But Justice Ginsburg rejected the analogy to the lesson she had taken from the aftermath of the Roe decision.
“I wouldn’t make a connection,” she said.
The fireworks at the end of the last term included three dissents announced from the bench by Justice Ginsburg. Such oral dissents are rare and are reserved for major disagreements.
One was a sharp attack on Justice Samuel A. Alito Jr.’s majority opinion in a job discrimination case, and he made his displeasure known, rolling his eyes and making a face.
Justice Ginsburg said she took it in stride. “It was kind of a replay of the State of the Union, when he didn’t agree with what the president was saying” in 2010 about the Citizens United decision. “It was his natural reaction, but probably if he could do it again, he would have squelched it.”
By: Adam Liptak, The New York Times, August 24, 2013