When the next President of the United States assumes office on January 20, 2017, Justice Ruth Bader Ginsburg will be nearly 84, Justices Antonin Scalia and Anthony Kennedy will be over 80, and Justice Stephen Breyer will be 78. Although many Justices have served on the Court into their 80s and beyond, the chances for all of these Justices remaining through the next 4 or 8 years of the 45th President are slim. Indeed, the next president will likely make multiple appointments to the Court.
The stakes are high. On non-controversial cases, or cases where the ideological stakes are low, the Justices often agree and are sometimes unanimous. In such cases, the Justices act much like lower court judges do, applying precedents, text, history, and a range of interpretative tools to decide cases. In the most controversial cases, however—those involving issues such as gun rights, affirmative action, abortion, money in politics, privacy, and federal power—the value judgments and ideology of the Supreme Court Justices, and increasingly the party affiliation of the president appointing them, are good predictors of each Justice’s vote.
A conservative like Justice Scalia tends to vote to uphold abortion restrictions, strike down gun restrictions, and view the First Amendment as protecting the right to spend unlimited sums in elections. A liberal like Justice Ginsburg tends to vote the opposite way: to strike down abortion restrictions, uphold gun laws, and view the government’s interest in stopping undue influence of money in elections as justifying some limits on money in politics. This to not to say it is just politics in these cases, or that these Justices are making crassly partisan decisions. They’re not. It is that increasingly a Justice’s ideology and jurisprudence line up with one political party’s positions or another because Justices are chosen for that very reason.
When the Court divides 5-4, it is usually making conservative decisions. Swing Justice Anthony Kennedy, appointed by Ronald Reagan, occasionally sides with the Court’s liberals. It was Justice Kennedy who wrote the opinion in Citizens United v. Federal Election Commission allowing corporations to spend unlimited sums in federal elections, and it was Justice Kennedy who wrote the opinion in Obergfell v. Hodges recognizing a constitutional right to same-sex marriage. Sometimes it is Chief Justice John Roberts who swings, as he did recently when he sided with the Court’s liberals to permit Florida to ban elected judges from personally soliciting campaign contributions.
What happens when Kennedy and the other older Justices leave, potentially shifting the balance of power? Under a more conservative Supreme Court, abortion could become all but impossible to obtain, at least in red states. More reasonable gun control laws could fall to Second Amendment challenges, and the Environmental Protection Agency’s power to protect our air and water further diminished. The Court could allow the wealthy to give $1 million contributions or more directly to candidates. It could declare unconstitutional more affirmative action plans and voting rights protections. Congress’s power to combat climate change could be undermined, unions deprived of power, and consumer protections further gutted.
Justice John Roberts, left, and Justice Anthony Kennedy, attend an address by Pope Francis to Congress on September 24, 2015.
These are not far-fetched scenarios. Some may even happen under the current Court, despite recent claims that this is a liberal Supreme Court. Consider the damage already done by the five-Justice conservative majority in cases like Citizens United v. FEC, allowing corporate money into our elections, and Shelby County v. Holder, a 2013 case gutting a key provision of the Voting Rights Act which provided key protection to minority voters in states with a history of discrimination. In a number of lower profile 5-4 decisions, the Court has hurt consumers and labor unions by making it harder to sue for company wrongs and to organize for collective action.
Things could get even worse if the most conservative Justices who have staked out extreme positions get just one or two more votes on the Court.
If the Supreme Court goes in an even more conservative direction—replace Justices Breyer and Ginsburg with Justices like Justice Scalia and Clarence Thomas—and there will be much less progressive legislation and activity that will be politically possible. If the Supreme Court hobbles unions through rulings on union dues, lets Republican states further curtail voting rights, reverses or limits court decisions barring discrimination based upon sexual orientation in order to supposedly further religious freedoms, and makes it even harder for lawyers representing consumers to protect consumers’ rights, political action and organization will be all the harder. On the other hand, replace Justices Kennedy and Scalia with Justices like Ginsburg and Elena Kagan and new possibilities emerge, from meaningful voting rights protections to broad protection against discrimination for members of the LGBTQ community.
It all raises the question, why do the individual Justices matter so much?
* * *
“I am an originalist. I am a textualist. I am not a nut.”
Justice Scalia, speaking back in 1997 to NPR’s Nina Totenberg, was trying to explain his preferred jurisprudence, the tools by which Justices decide, or say they are deciding, cases. When it comes to interpreting the text of the Constitution, Justice Scalia says he tries to figure out the text’s “original meaning” at the time of the Constitution or when the country adopted particular constitutional amendments. For interpreting federal statutes, Justice Scalia looks at what he considers the “plain meaning” of the statutory text when it was written, regardless of what the drafters of the legislation said in committee reports or on the floor of Congress when the statute passed, and regardless of potentially bad social outcomes stemming from this dryly textual interpretation. Witness Justice Scalia’s recent dissent in King v. Burwell, the case challenging subsidies for health insurance for those on federal exchanges. Scalia’s opinion was utterly unconcerned with the effects of the law on the health insurance of millions of individuals.
Strict originalism and textualism sometimes lead to harsh results. For example, some originalists believe that the Fourteenth Amendment of the Constitution, which guarantees “equal protection” of the laws, does not bar gender discrimination, an issue the Court long ago decided to the contrary. Thus, under some originalist interpretations, it is constitutional for a state government to pay men more than women or to provide certain benefits only to women. And of course under this view of the equal protection clause there is no shield whatsoever against sexual orientation discrimination.
Justice Scalia is willing to bend his interpretive rules a bit, which is why he says he’s not a “nut.” He recognizes respect for some earlier Court precedent, such as cases holding gender discrimination unconstitutional under the Equal Protection Clause. He calls himself a “faint-hearted” originalist.
Justice Antonin Scalia and Justice Samuel Alito
This makes Justice Scalia a relative moderate in the crowd of originalists and textualists, and maybe not as extreme as the next Justices to serve on the Court appointed by a future Republican president such as ultra-conservative Ted Cruz. Justice Clarence Thomas is more willing than Scalia to apply a stricter version of originalism and more likely to vote to overturn established precedent. He, for example, reads the First Amendment’s Establishment Clause as applying only to the federal government, so there would be nothing unconstitutional about a state like Alabama choosing an official state church. He also would read Congress’s commerce power so narrowly as to invalidate much modern federal legislation.
In a recent article in the Weekly Standard, Professors Randy Barnett and Josh Blackman urge the next Republican President to appoint Justices, like Thomas, who care little about judicial restraint or respect for precedent. Senator Ted Cruz, while running for president, has severely criticized Chief Justice Roberts as insufficiently conservative, calling for the appointment of even more extremely conservative judges.
Indeed, there is much further room to move to the right. Some strict textualists do not agree with Justice Scalia’s exception for interpretations of statutes which lead to absurd results. Let the chips fall where they may, they say, and either Congress will fix the problem with an apparently absurdly written statute or it won’t. It’s not the Court’s problem.
So far, strict originalism and textualism have not eliminated reliance by most Justices on broader schools of interpretation. These eclectic traditions include those which focus on legislative history and the broad purposes of statutory or constitutional provisions, and more pragmatic approaches which interpret the Constitution and statutes as living documents adapting to modern times and which aim to make government and society workable and efficient.
The dispute over interpretive method is more than a good faith argument among people recognizing multiple legitimate traditions. Conservatives, especially originalists and textualists, have been trying to sell the myth that only their means of interpretation are legitimate. When judges go beyond original constitutional meaning or strict textualism, the argument goes, they usurp the power of the legislature or make laws. They are “activist” judges. Justice Scalia is fond of saying the Constitution is “dead, dead, dead.”
Don’t believe it. No one has a monopoly on acceptable means of interpreting the Constitution or statutes. Judges applying originalism or other methods to overturn established precedent are just as “activist” as other judges (though “activist” is an unhelpful label for judges and Court decisions). The Constitution’s clauses such as “equal protection” and “due process” are general or ambiguous, as are many federal and state statutes, leaving great room for respected alternative interpretive methods. Justices Thomas and Scalia recently got into a bitter originalist dispute over the meaning of the Constitution’s Necessary and Proper clause in the case surrounding whether the President or Congress gets to decide if “Jerusalem” or “Israel” appears on the passport of someone born in Jerusalem.
Originalists often dispute original meanings, and even with an accepted original meaning Justices still need to engage in balancing when there are competing interests at stake. Consider guns: even if one believes the original meaning of the Constitution’s Second Amendment includes an individual right to personal possession of weapons, to what extent may governments limit the possession of certain types of guns or in certain locations in order to promote public safety? Originalism cannot answer this question of balancing.
The views of the individual Justices matter so much on these issues. Had a President Kerry or a President Gore appointed more liberal Justices instead of Chief Justice Roberts and Justice Alito, the Supreme Court probably would not have struck down Washington D.C.’s gun control law in the Heller case; it would not have approved the constitutionality of the federal partial-birth abortion ban in Gonzales v. Carhart; it would not have struck down Seattle school district’s affirmative action plan in Parents Involved; and it would not have struck corporate campaign finance limits in Citizens United or a key portion of the Voting Rights Act in Shelby County.
Indeed, there have been historic moments in the past where the meaning of the Constitution shifted dramatically not through constitutional amendment because of a change in the composition of the Court or even a changing of a Justice’s views. We can think to the early 20th Century and the Lochner era, where the Court stood in the way of laws meant to protect workers from exploitation by their employers, and then later the Court’s blocking of much of President Franklin Delano Roosevelt’s New Deal legislation, until the famous “switch in time which saved nine” by Justice Owen Roberts. That switch gave FDR the power to implement his reforms and let him lay off his threat to pack the Court with friendlier Justices.
Even today, each Justice’s philosophy differs. Some conservatives on the Court, such as Chief Justice Roberts and Justice Samuel Alito, do not stick with originalist methodology although they usually agree on conservative results. Some liberal scholars, though so far no Justices, have now embraced originalist interpretations as well, putting much stock into the meaning of the Constitution as it was amended after the Civil War to require greater equality among citizens. Originalism, like other approaches, apparently cannot cabin judicial discretion.
While the arid debate over the means of interpretation drags on, what is not contested is that, regardless of their stated choice of interpretive rules, Republican-appointed Justices vote differently in controversial cases than Democratically-appointed Justices. Whether the issue is the constitutionality of waiting periods or limits on types of abortion procedures, or the constitutionality and workability of President Obama’s health care law, or the power of the government to restrict the use of guns, in most of these cases most of the time Republican-appointed Justices are on the conservative side of the issue and Democratic-appointed Justices are on the liberal side.
Justice Elena Kagan recently told an audience that when the Justices get together to discuss cases, they have longer discussions over how to resolve the less controversial cases, and shorter discussions over the more controversial ones. On the controversial cases, further discussion would just “irritate” colleagues and change no one’s minds. Professor John McGinnis points to Kagan’s remarks and describes the country as having “two” Supreme Courts, a legal one and a political one. McGinnis’s solution is to use originalism and neutral principles to decide the hard cases too, but, as we have seen, that provides no real cabin for judicial discretion.
Justice Elena Kagan
These days, with five conservative Justices and four liberal ones, liberal victories tend to come in those cases in which a conservative Justice strays from the conservative position, such as Justice Kennedy on gay marriage, or Chief Justice Roberts’ upholding of the constitutionality of Obamacare under a tax power theory only he embraced.
The ideological divide on the Court has now become a partisan divide as well. It used to be that some Justices appointed by Republican presidents were liberals or moderates, such as Justice Stevens, appointed by President Gerald Ford or Justice David Souter, appointed by the first President George Bush. Some Justices appointed by Democratic presidents, such as Justice Byron White, appointed by President Jack Kennedy, were conservative. Justice White, writing in the 1986 case of Bowers v. Hardwick found a gay man’s argument for a constitutional right to engage in gay sex free of government interference with his liberty to be “facetious.” It is hard to imagine any Democratic-appointed Justice agreeing with Justice White today, or voting against a constitutional right to same-sex marriage.
Today all the liberals on the Court have been appointed by Democratic presidents and all the conservatives on the Court by Republican presidents. We have a pretty good idea, then, what the Justices and the balance of power on the Court will be like for the next generation if we know the appointing President and who controls the Senate.
At stake are fundamental policy decisions on all aspects of American life made by nine non-elected judges with life tenure and nearly free rein, whose views increasingly seem to be in line with the views of the party whose president nominated them. And especially today, with gridlock in the political branches, the Supreme Court’s word is often the final word on U.S. policy on questions from health care to voting rights.
What can be done? Can social protests pressure the Supreme Court to change its ways?
* * *
The camera work would not have won an Academy Award for cinematography.
In fact, the shaky video shot by protesters with perhaps a hidden pen camera inside the ornate courtroom of the Supreme Court looked like someone forgot to turn off a camera phone before sticking it in her back pocket.
One by one, the protesters shouted their messages about the Supreme Court’s 2010 Citizens United v. FEC case, which helped open the floodgate of money in American elections. The pinhole video shot in 2015 on the fifth anniversary of the decision shows some protestors tackled to the ground before they were removed and criminally charged with making an illegal “harangue or oration” at the Supreme Court. Their statements were barely audible on the video later posted to YouTube.
“Money is not speech. One person one vote. Separate wealth and state.”
“Get money out of politics.”
“Si se puede.”
“We are the 99 percent!”
“We are 99 Rise. Join us to reclaim democracy. 99 Rise!
It was only the second known released video from a Court proceeding in United States history (the first came from an earlier 99 Rise protest). Although the Supreme Court is a federal government institution holding regular public hearings, it does not televise its proceedings, and it usually releases audio recordings Friday afternoons after each week of oral argument. These strict broadcast rules help keep the Court unknown to the general public.
The 99 Rise protest was scrubbed from the audio the Court later released, as was protest-related audio when the group did this in 2014 and then when it protested again in 2015 on the first anniversary of another controversial Supreme Court money in politics decision, McCutcheon v. FEC.
A few weeks after this third 99 Rise protest, the Court heard argument in one of its most important and controversial cases in recent years, Obergfell v. Hodges, considering the constitutionality of state bans on same-sex marriages. Modestly accommodating the intense media scrutiny, the Court agreed to release the audio of the oral argument immediately after the proceedings ended instead of waiting until Friday afternoon.
Again there was a protestor, and this time the immediately-released official Court audio file included a recording of the protest itself. Just as lawyer Mary L. Bonauto finished her argument in favor of a constitutional right to same sex marriage, and before United States solicitor general Donald Verrilli began his argument, a lone protestor began shouting something that sounded like this:
“People who support gay marriage, you will burn in hell for eternity … It is an abomination from God!”
Chief Justice Roberts gave Verrilli a moment to gather his thoughts before his presentation as Supreme Court marshals removed the protestor from the courtroom. Justice Scalia, who often cracks jokes at oral argument, commented before Verrilli began.
“It was rather refreshing, actually.”
The Court’s small public audience made up of the press, lawyers, and spectators (some of whom had paid up to $6,000 to companies to hire people to stand in line for them so they could get a rare public seat at the high-profile argument) laughed heartily at Scalia’s joke, but others took offense. New Yorker columnist Jeffrey Toobin wrote that Scalia and not the protestor was the real embarrassment, as he saw Scalia as endorsing the protestor’s troubling message. More likely, Scalia the class clown was merely joking that it was nice to hear from a right-wing protester after all the leftist 99 Rise interruptions in earlier Court sessions.
99Rise activists show their support for a constitutional amendment limiting corporate campaign giving, in Sacramento, Calif. in 2014.
As a means of getting some media attention, the orations and harangues were moderately successful. The 99 Rise protests generated a few news stories, and the anti-same sex marriage protestor (and Scalia’s response) got a mention in the New York Times’ coverage of the oral argument.
A few weeks after the 99 Rise protests, Doug Hughes, a postal worker from Florida flew and landed his gyrocopter in front of the U.S. Capitol, again a protest against Citizens United. With concerns he was flying into restricted airspace and threatening national security, the government indicted Hughes on counts which could put him in jail for up to nine and half-years. The trial will get more coverage for his cause, though he faces a heavy price for his social activism.
Scholars debate how much public opinion sways what the Justices do, and how much it should. Perhaps elite opinion matters more to the Justices than general public opinion. But the protests were unlikely to change Justices’ minds on issues of campaign finance or same-sex marriage. Most of the Justices’ views on the hot-button issues most important to Americans were well known and unmovable. The Court already had a chance to overturn Citizens United in a 2012 case out of Montana and, without even setting a hearing on the question, the five-Justice conservative majority rejected out of hand the Montana Supreme Court’s findings that corporate spending could corrupt that state’s elections. The only thing the 99 Rise protests likely did was convince the Justices that cameras in the courtroom are a bad idea, because cameras could encourage more protests.
* * *
Liberals spend a lot of their time organizing for political action, on issues from the minimum wage to marriage equality to climate change to voting rights. Yet the Supreme Court already restrains much of what is permissible. Meaningful campaign finance reform is not possible until the Supreme Court overturns or otherwise dismisses the Citizens United precedent. The 99 Rise protestors may keep interrupting the Court, but that won’t change the 5-4 splits on the issue.
Social protest won’t change the Supreme Court’s views, and therefore the meaning of the Constitution and key federal statutes, On the big, ideological issues you won’t do it even excellent briefing and oral argument by the top Supreme Court litigators can’t do much.
Constitutional amendment also isn’t a realistic path to change the meaning of the Constitution in our polarized times. An amendment requires getting the agreement of two-thirds of Congress and three-quarters of the states. That is not going to happen on issues such as campaign finance, where Senate Majority Leader Mitch McConnell has made his opposition to campaign laws his signature issue.
Constitutional change can come only from Supreme Court personnel change.
Capturing the presidency is the most effective way to control who will sit on the Supreme Court. The president nominates the Justices, and will likely choose someone in line with the president’s ideology. Witness Democratic candidate Hillary Clinton suggesting she will only appoint Justices who would overturn Citizens United. Control of the Senate is also key, as the Senate confirms the president’s nominees and a Senate majority from a party opposed to the president can pressure the president to name more moderate candidates.
The Senate has often deferred to the President in the Supreme Court confirmation process. But political polarization threatens such deference in the future. With Justices today much more likely to reflect the ideology of the party of the president who appointed them, and with control of the Court for a generation likely hanging in the balance, confirmation in the Senate will be seen through a more partisan lens than they have before.
In the past few decades the Senate has mostly deferred to each President’s choices. Consider this: Justice Scalia was confirmed to the Supreme Court in 1986 on a vote of 98-0, and Justice Ginsburg in 1993 by a vote of 96-3. But 42 Democrats voted to oppose Samuel Alito, when nominated by President George W. Bush in 2006, while 37 Republicans voted to oppose Elena Kagan for the Court when nominated by President Obama in 2010. Democrats had more than enough votes to filibuster the Alito nomination (requiring 60 votes for confirmation), but chose not to. Republicans nearly had enough votes to filibuster Kagan. Neither was filibustered and both Alito and Kagan sit on the Court.
President Bush shakes Justice Samuel Alito's hand after the Senate votes to confirm him in 2006.
We cannot expect the pattern of deference to the President to continue, whether Democrats or Republicans control the Senate. With the Supreme Court’s control at stake, there will be great pressure by partisan on each side to vote to block the other side’s nominees. If the President and the Senate majority are of the same party, expect a more highly ideological candidate to be pushed through. If the President and Senate majority are of opposite parties, there is more of the chance for a moderate candidate or even stalemate. The stakes will be high and the battle potentially fierce.
This pressure will likely break the filibuster rule. Senate Democrats under Harry Reid already eliminated the rule for all executive nominations aside from Supreme Court nominations back in 2012. The Alito and Kagan votes came before the filibuster collapse, and in the future both parties under the right circumstances will feel greatly tempted to jettison the filibuster’s application to Supreme Court nominees too if a minority party stands in the way of control of the Supreme Court. This means that a president with a majority in the Senate will have tremendous flexibility in choosing a highly ideological Supreme Court nominee.
It is not as if rejecting a nominee on ideological grounds is unthinkable. It happened most recently with Robert Bork, nominated in 1987 by President Reagan but who went down in the Senate on a 58-42 vote. Bork’s views were extremely conservative, but there seems little doubt even a more moderate conservative or liberal could get filibustered these days if control of the Court is at stake. Indeed, when he was a Senator, President Obama opposed the 2005 nomination of Chief Justice Roberts by President Bush solely on ideological grounds, even though Roberts was superbly qualified for the job and appeared to be (and has turned out to be) much more moderate than Bork would have been.
* * *
It may seem odd to think of identity of the personnel on the Supreme Court as a civil rights cause. But that’s exactly what it is. Progressives who care about the future of the country should think first and foremost about the Supreme Court, and about who will sit on it for the next generation. A hostile Supreme Court will limit the options available for building a more progressive United States. With a friendly Supreme Court, the future is much brighter.
The problem for progressives is that control of the Supreme Court is not a salient issue for its voters as much as it has been for those on the right, who have demonized liberal Supreme Court opinions for years and have experience running against the Supreme Court.
How can progressive organizers connect what the Court does over a period of years with the issues that voters immediately face when then decide how to (and as importantly whether to) vote on Election Day? Voters may think of unemployment, or taxes, or war when they go to vote. They are much less likely to think of the Supreme Court.
Progressive activists must put the Court’s importance on the public radar, by emphasizing what a conservative Court for the next generation would mean. Consider some of the issues likely to come before the Court in the next decade.
Can a state force a woman to return multiple times and view images of a fetus ultrasound before having an abortion or impose such strict licensing requirements as to cause most of the abortion providers in a state to close?
Can businesses refuse to serve same-sex couples claiming a religious exemption to doing so?
Can cities with high crime rates ban possession of automatic weapons?
Can the federal Environmental Protection Agency protect our air and water over the objections of big business and conservative states?
Will the Court put a stop to most consumer class action lawsuits, public union organizing, and products liability suits against pharmaceutical companies?
The opacity of the Supreme Court and its formulation of public policy in the guise of constitutional and statutory adjudication makes highlighting the issue of the Court’s personnel a huge challenge. But energy needs to be shifted from other battles to control of the Court, which depends on electoral victories and then organizing at the time of key nominations and confirmations.
Protestors can continue trying to sneak into the Supreme Court with their secret cameras and their protests. It may get a day’s worth of press coverage, and is increasingly likely to land the protestors in jail. But real change will come not from a stream of new people coming into the Supreme Court’s gallery to yell about the Court’s errors. Change has to come not from the gallery but from influencing who will be in those black robes behind the bench.
Liberals must recognize that the arc of the moral universe bends in the direction of the Supreme Court majority.
Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and is the author of the forthcoming book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections. Follow him on Twitter and at the Election Law Blog.