The most important issue of 2016—the Supreme Court. We already know a good amount about it, but I thought it worth these diaries. I started writing one diary, to go on an 80-year journey from the Depression to the present. That got too long, so I broke it into two diaries. Part 1 (
www.dailykos.com/... ) covers 1933-1973. This is part 2, from 1973-present. By 1973, the justices were: William Douglas, William Brennan, Thurgood Marshall, all strong leftists, then William Rehnquist on the far right, Warren Burger on the right, and then Lewis Powell, Potter Stewart, Harry Blackmun on the center-right, along with Byron White (though White, as a New Deal Democrat, was somewhat different from the other three). Blackmun became a liberal as time went on, but he was right of center for his first few years. The four Nixon appointees had brought the liberal era to a close, and we’ve never had much chance to do anything about it—until now.
More below the fold.
Conservatives Ascendant
Nonetheless, once Nixon got his hands on the Court, the trend was in favor of conservatives, and it’s been that way ever since. One case that nobody ever talks about is San Antonio School DIstrict v Rodriguez (1973), which challenged the Texas property-tax-based method of funding public schools. It’s unconstitutional, argued the plaintiffs, because it generates unequal funding for public schools. No dice, said the SCOTUS, 5-4, Stewart joining the 4 Nixon appointees. Douglas, Brennan, Marshall, White dissented. The Constitution does not guarantee a right to an education, so states are free to fund it unequally if they choose. And property taxes are of course the preferred method of funding for public schools these days. What might public education look like if SCOTUS had ruled the other way?
In 1975, William Douglas, who had been in declining health for years, suffered a stroke. He finally had to throw in the towel and retire, having served 36 years, a record that still stands. In what surely was humiliating for Douglas, Gerald Ford got to name his successor. Ford loathed Douglas, and while House minority leader, Ford had actually tried to impeach Douglas. Now he would name Douglas’s successor—7th Circuit Judge John Paul Stevens. We all know what Stevens became. But still, this deprived the left wing of a very powerful voice. Only Brennan and Marshall remained on the left wing. Douglas died in 1980.
Gregg v Georgia (1976) reinstated the death penalty after Furman. 7-2, Brennan and Marshall dissenting. Self-explanatory.
In 1978 there was the Bakke affirmative action case. Allan Bakke, a white man, had been rejected from UC Davis medical school. The school set aside a certain number of spaces under a special admissions program for underprivileged minorities. Bakke’s credentials were significantly better than those of the minorities admitted under the special admissions program. He argued this was unfairly discriminatory. The Supreme Court ended up badly split, as no opinion commanded a majority. Brennan, Marshall, Blackmun, White voted to uphold the quota established by UC Davis. Stevens, Burger, Stewart, Rehnquist voted to strike it down. Powell voted for a compromise—he voted to strike down the affirmative action program and admit Bakke, creating a 5-4 vote for that position. But he went further and said in principle, affirmative action is okay, as long as it isn’t this rigid, and cited the program that Harvard used. The other four made no comment about the legality of affirmative action in principle, but in effect Powell provided a fifth vote for the liberal wing to uphold it.
There was also Buckley v Valeo in 1976. Money is speech, said the Court, in a per curiam decision, striking down several restrictions on campaign finance (but upholding others)—restrictions that, by and large, were enacted in response to Watergate. Did any justice want to uphold all restrictions and reforms? Why yes—Byron White. He wrote a dissent criticizing the idea that money is speech, and critiquing the Court for interfering in a political matter of which it had little knowledge. He certainly made a good point there. Members of Congress know a lot more about running for office than justices do.
As time progressed into the 80s, the Court ruled conservatively significantly more than not. Liberals still had a shot, as Blackmun and Stevens moved significantly leftward from when they first started, often joining Brennan and Marshall. Still, that was only 4 votes. No improvement came in the 80s, as Reagan was president. Stewart retired in 1981, and Reagan replaced him with another conservative-leaning justice, Sandra Day O’Connor. In a sign of the times, Reagan had to reach to a midlevel state appellate court to find a woman to appoint. But when Obama looked to name a woman, he had several excellent, well-qualified choices. O’Connor usually voted with the other conservative justices, White, Burger, Powell, Rehnquist. They voted together to cut back on students’ rights—upholding the principal’s search of a student’s purse (the student had been caught smoking and the principal was looking for cigarettes), upholding the suspension of a student for using double entendres in a speech at school, and allowing the principal to prohibit publication of articles in the school newspaper (one discussing divorce, the other teenage pregnancy); upholding virtually every restriction on abortion that came before them; and perhaps most gallingly, upholding laws prohibiting consensual gay sex in Bowers v Hardwick.
In 1986, Burger retired, and the even more conservative Rehnquist was elevated to chief. For the new associate justice vacancy, Reagan appointed the man who would become the bane of liberals’ existence for 30 years—DC Circuit Judge Antonin Scalia.
In 1987, Powell retired, and we know what came next—the defeat of Robert Bork and nomination of Anthony Kennedy, then a 9th Circuit judge. But it’s interesting to consider another possible twist—what if Reagan had nominated Bork in 1986 (with a GOP Senate) and Scalia in 1987? Decent chance they both would have been confirmed. And what a disaster that would have been. See below for the significant liberal 5-4 decisions where Kennedy joined the four liberal justices. Until 2012, when Bork died, they would all have come out the other way.
Let’s take a moment to note something—all of these retirements were conservative Republicans who wanted a conservative Republican naming their successor. They knew elections had consequences. Liberals should take note, especially in light of what I’m about to say.
In 1990, Brennan, then 84, stepped down due to ill health. He’d had a stroke. He surely did not want GHW Bush picking his successor, but time catches up with us all. But because liberals had stood up in 1987 against Bork (Dems controlled the Senate), we wound up surviving this one—Bush didn’t want a fight. He picked David Souter, who had a thin paper trail but who Bush thought would be a conservative. Thankfully, Bush was wrong. But if Democrats hadn’t controlled the Senate and stood up against Bork, Bush would have appointed a real conservative—who would probably still be serving, rather than Sonia Sotomayor, who now holds that seat. Brennan died in 1997.
In 1991, Marshall retired, also due to poor health. We all know what happened next. But let’s consider another alternate history—Marshall died in January 1993, shortly after Clinton took office. What if Marshall had tried to hold out? Could he have made it until Clinton took office, had he chosen to remain on the Court? And if so, who does Clinton name? Certainly wouldn’t have been Clarence Thomas.
Also, what if Democrats had run a better campaign in 1988? Do we beat Bush, and allow Brennan and Marshall to retire under a president who would have wanted to appoint a like-minded successor?
That aside, the early 90s were about as conservative as the Court got, prior to the arrival of Roberts and Alito. Only Blackmun and Stevens were liberal. Then there was Souter, O’Connor, Kennedy, White, Rehnquist, Scalia, Thomas. Only White was appointed by a Democrat, and if not for the evolution of some GOP appointees, we would have been in much worse shape. A few notable cases from around then include:
Flag-burning is constitutionally protected free speech. 5-4, Brennan, Marshall, Blackmun, Kennedy, Scalia outvoting Stevens, White, O’Connor, Rehnquist.
Campaign finance, Austin v Michigan Chamber of Commerce. Overruled in Citizens United, this upheld campaign finance restrictions, 6-3. Who were the dissenters? Kennedy, Rehnquist, Scalia. Two were there for Citizens United, and the third would surely have joined that majority had he still been around. Instead, it fell to his old clerk and immediate successor, John Roberts, to do it.
Right-to-die, Cruzan v Missouri. Nancy Cruzan had a bad car accident that left her brain dead and in a persistent vegetative state. Her parents, Lester and Joyce, fought for years to take her off life support. Missouri law said there must be clear and reliable evidence that Nancy would have wanted that. Was there? Were there any constitutional principles coming into play? 5-4, the Court said there wasn’t enough evidence—Rehnquist, O’Connor, Kennedy, White, Scalia outvoting Brennan, Marshall, Blackmun, Stevens. The Cruzans then worked hard to find more evidence, and won their case, allowing Nancy to be removed from life support and die in December 1990. To date, this remains the sole right-to-die case that the Supreme Court has decided. Tragic footnote—the ordeal destroyed Lester and Joyce. In 1996, Lester hanged himself. In 1998, Joyce got cancer. She refused treatment and died quickly.
Harmelin v Michigan, upholding a life sentence for cocaine possession, 5-4. Stevens sharply criticizes this decision in his memoir. He dissented, along with Marshall, Blackmun, and White. Souter had replaced Brennan, and voted to uphold the sentence. Stevens reserves the harshest treatment for the Scalia concurrence, which argues the 8th Amendment does not require the punishment be proportional to the crime.
Lee v Weisman, striking down prayer at public high school graduation. Kennedy originally voted to uphold the prayer, then changed his mind and also the outcome—he voted with Blackmun, Stevens, Souter, O’Connor rather than White, Rehnquist, Scalia, Thomas.
And the most notable of all--Planned Parenthood v Casey. PA had a restrictive abortion law, and the case was a challenge to Roe v Wade. The conservatives thought they might be able to overturn it this time. The lawyer arguing against the law pretty much surrendered. She was frustrated with the Court chipping away at abortion rights, and said: You overturn this law or overturn Roe. But Souter wasn’t buying that. He and O’Connor crafted a compromise, which the 3rd Circuit had adopted when it heard the case: uphold Roe, and uphold most of the law, striking down only the spousal notification provision, whereby married women had to inform their husbands before getting an abortion. Kennedy, who had been considering voting to overturn Roe, was amenable to the compromise, thus Roe was spared, 5-4. Souter, O’Connor, Kennedy voted with Blackmun and Stevens to uphold Roe and strike down spousal notification, though Blackmun and Stevens would have struck down the whole law. The case prompted one of Scalia’s numerous apocalyptic dissents.
Clinton Stops the Bleeding
Thus, in 1993, the Court had Blackmun, Stevens, and Souter on the left (Souter only joined the left wing after his first couple of terms), Rehnquist, Scalia, Thomas on the far right, and O’Connor, Kennedy, and White on the center-right. Bill Clinton became the first Democratic President in 12 years, and quickly got the chance to appoint a justice: White, then 76, announced his retirement after 31 years. Although White had become disenchanted with his party’s increasing social liberalism, he remained very much a Democrat at heart, and wanted a Democrat to name his successor.
White is often remembered as a conservative, considering his unceasing opposition to Roe v Wade and his terrible decision in Bowers v Hardwick. That is justifiable, but White cast a number of “liberal” votes as well. He was in the majority for the bulk of the Warren Court’s decisions advancing equal rights. He voted in favor of affirmative action in Bakke. He would have required equal school funding in Rodriguez. And quite significantly from a modern perspective, he was as fiercely opposed to the involvement of money in politics as they come. His dissent in Buckley v Valeo went further than anyone else in opposing the idea that money is speech. He voted with the majority in Austin. He would have abhorred Citizens United. He was certainly not a conservative in the modern sense, and hey—he had enough party loyalty to allow Bill Clinton to name his successor.
As for Clinton himself: he went through a tortuous, convoluted search process but ultimately came up with a real gem—DC Circuit Judge Ruth Bader Ginsburg. She's sometimes called the Thurgood Marshall of the feminist movement, and with good reason. She was a pioneering feminist lawyer who won 5 of 6 cases she argued before SCOTUS. She also was an excellent strategist—she brought cases against laws that on their face, favored women, but actually were rooted in the stereotype of men-as-breadwinners, women-as-caregivers. Example: a law allowed women to get a tax break for care of a dependent, but not men. She got the court to strike down the law. She also had a feminist objection to Roe v Wade-- while she certainly agrees with the result, she objects to the Blackmun opinion which focuses more on the rights of doctors than the rights of women. She even worked for the ACLU, which would surely prevent her confirmation today. Somehow, though, she was confirmed overwhelmingly in 1993.
Ginsburg replacing White marks the sole instance since 1967 of a justice being succeeded by someone more liberal than he (or she). Ginsburg is indisputably more liberal than White. But all the other appointments either maintained the status quo or shifted the court rightward. Obama’s choices of Sotomayor and Kagan fall into the former category—but we’re getting to that. Of note—her appointment was contingent on twists of fate, too. Charles Whittaker’s nervous breakdown that allowed JFK to appoint his successor—Whittaker otherwise would probably have stuck around for a GOP president. White’s party loyalty despite his misgivings. Clinton finding Ginsburg after fumbling around with other possible nominees.
Ginsburg added another vote to the liberal wing, thus the liberals once again needed one conservative, not two. She was also a strong supporter of Roe v Wade—which made Harry Blackmun, the author of that decision, feel that his main legacy was reasonably secure. He decided to call it quits the following year, at age 86, allowing Clinton to choose a like-minded successor. Clinton’s search was less convoluted this time. He had two principal choices in mind, both of whom he’d considered when he nominated Ginsburg—New York Governor Mario Cuomo, and 8th Circuit Judge Richard Arnold. Once Cuomo declined, choosing to run for reelection as governor, Clinton’s choice essentially narrowed to Arnold, and another runner-up for the Ginsburg seat—1st Circuit Judge Stephen Breyer. Clinton’s first choice was Arnold, whom he knew well from his time in Arkansas, and who was very widely respected. Arnold had cancer, though, and Clinton couldn’t be sure that Arnold would live much longer. He consulted with doctors, who told him that the cancer would probably cut Arnold’s life short. So, Clinton decide to nominate Breyer. This turned out to be a very wise choice: Arnold died from the cancer in 2004, age 68. Cuomo died on New Year’s Day 2015. But Breyer, as we know, is still alive, and seemingly in decent shape at 78.
The Longest Period without change—Conservatives Generally Prevail
Thus, we now have the composition of the Court when so many people on this site (myself included) were coming of age: the liberal quartet of John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer, the moderate-conservative Sandra Day O’Connor, the conservative Anthony Kennedy, and the very conservative William Rehnquist, Antonin Scalia, Clarence Thomas. Those justices served together from 1994-2005—the longest period without change in the history of the 9-member Court. (The period from 1812-1823 was slightly longer, but the Court only had 7 justices then.)
During this period, of course, the conservatives won more than they lost. Notably, they began rolling back congressional power under the Commerce Clause, in US v Lopez and US v Morrison. They permitted the Boy Scouts to exclude gays. They permitted partisan gerrymandering in Vieth v Jubelrier (though Kennedy left the door open for future challenges to partisan gerrymanders). Most significantly, of course, they hijacked the 2000 presidential election, which needs no elaboration.
One little-known point about Bush v Gore, though, is that it forever soured Souter’s view of the Court, and his colleagues. Souter liked to think of the judge as an honorable figure, fairly dispensing justice. What his colleagues had done was anything but. He considered resigning from the disgraced institution. Thankfully, he didn’t. He became more miserable as the far-right took control under Bush. Never particularly enthused about being a justice anyway, Souter bolted at the first opportunity, retiring in 2009 and allowing Obama to name Sonia Sotomayor.
There were some significant liberal victories, where we picked up O’Connor, Kennedy, or both. In Romer v Evans, the SCOTUS ruled 6-3 that Colorado could not amend its state constitution to ban non-discrimination laws protecting the LGBT community. (Does that remind anyone of anything? Anything in North Carolina, for instance?) Kennedy wrote the decision. In Lawrence v Texas, the SCOTUS overturned Bowers v Hardwick, striking down laws banning consensual gay sex. Once again Kennedy wrote, and the liberals all joined his decision, making the decision 5-4 to overturn Bowers. O’Connor agreed to strike down the laws at issue in the Texas case, but did not vote to overturn Bowers, a decision she had supported in 1986. She realized she had erred, but did not go the full way to admitting it, writing a concurring opinion in which she used a different rationale from Kennedy to strike down the laws. Scalia, of course, wrote another of his famous apocalyptic dissents.
Also in 2003, there were the Michigan affirmative action cases, Grutter v Bollinger, Gratz v Bollinger. Grutter was a white woman rejected from Michigan Law School. Gratz was a white woman rejected from Michigan undergrad. Bollinger was the president of the university. The law school used criteria that evaluated each applicant holistically, while the undergrad program used a point system to rate applicants—max score 150, score 100 guarantees admission. Underrepresented minorities automatically got 20 points. A perfect SAT netted only 12. As in Bakke, the Court split. Kennedy, Rehnquist, Scalia, Thomas voted to strike down both programs, as expected. Stevens, Ginsburg, Souter voted to uphold both, also as expected. Only Breyer and O’Connor saw a difference, and swung the results, voting to uphold the law school program but strike down the undergrad one. Thus, we got another compromise verdict, like in Bakke.
There were at least two important strides on the death penalty: Atkins v Virginia, 6-3, forbade execution of the mentally disabled, while Roper v Simmons, 5-4, forbade execution of juveniles. Kennedy joined the liberals on that one.
The period from 1994-2005 also contained two important strikes against imperial presidential power: Rasul v Bush, 6-3, granting Guantanamo detainees access to US courts, and Hamdi v Rumsfeld, 8-1, Bush could not arrest and detain an American citizen indefinitely. Though the Court agreed on the result (except for Thomas), they were badly split on the rationale. O’Connor, joined by Breyer, Kennedy, Rehnquist, wrote that the Authorization for Use of Military Force passed after 9/11 gave Bush authority to arrest and detain people, but added her famous line: “A state of war is not a blank check for the president.” Hamdi must have opportunity to challenge his detention, such as in a Combatant Status Review Board. Souter, joined by Ginsburg, agreed that Hamdi must be allowed to challenge his detention. He disagreed about the AUMF authorizing Bush to detain people. Scalia, joined by Stevens, also agreed that AUMF did not authorize detention. He went further than the others, and said Hamdi must be charged in federal court, or released. Thomas, of course, would have upheld the Bush position. Fortunately, he was alone. He might not be on today’s court.
Conservatives Dominant
Thus, by 2005, the Rehnquist Court was a conservative Court, but one where liberals still stood a chance in some cases. That changed dramatically in 2005, when conservatives finally got the far-right crusaders they’d long been pushing for. First, O’Connor announced her retirement, in large part to spend more time with her husband, then ill with Alzheimer’s. Bush wanted to name torture architect Alberto Gonzales, then the attorney general, but the Christian right said no dice—Gonzales had an insufficiently theocratic, authoritarian record on abortion. (See my 5th Circuit diary for a bit more detail about that.) Four days after Roberts ruled in Bush’s favor in Hamdan v Rumsfeld, Bush named Roberts. (See my DC Circuit diary, which comments on that.) Conservatives found Roberts quite acceptable--after all, as a Reagan Justice Department lawyer, he’d argued against the Voting Rights Act, and he’d spent his career arguing for big corporations, getting them out of punishment for wrongdoing. Plus, Hamdan.
Meanwhile, Rehnquist was mortally ill with cancer, and died in early September, a month before he would have turned 81. Bush now had another choice. He quickly concluded that Roberts was a solid conservative and a smooth talker who would capably serve as the face of the judiciary, and the path of least resistance would be to nominate him as chief justice. Thus, he did so, three days after Rehnquist’s death. Roberts was confirmed with no problem. Clinton and Obama both voted no, with Obama noting that Roberts “has used his skills on behalf of the strong in opposition to the weak.” Right out of the authoritarian playbook.
For the O’Connor seat, Bush chose Harriet Miers, who was not well-qualified, and who evangelicals spurned because she did not have a clear record of being a down-the-line conservative. Bush of course then turned to Samuel Alito, an instant hit with the far right. Like Roberts, he’d been a Reagan lawyer who opposed the Voting Rights Act. As a young man, he’d said he was motivated to get involved in politics by disagreement with most of what the Warren Court was doing. He was on record believing that presidential power in wartime is nearly unchecked. In Casey, he was on the 3rd Circuit and voted to uphold the entire law, including the spousal notification provision. It was obvious what kind of judge he was going to be, but the Democrats wimped out as always, fearing backlash for being obstructionist/hoping to be rewarded for being the adults in the room, and confirmed Alito without a fight. Clinton and Obama both voted no.
While Roberts and Alito are both very far to the right, and usually vote the same way, there are differences between them, which are quite significant at times. Roberts is a money conservative, from the country club tradition. He’s about as far to the right as country club Republicans get, but he is from that wing of the party. Alito is a Christian crusader, seeking to stomp out all forms of social/cultural liberalism. “Lesser” people fighting to be treated fairly—working America, LGBT citizens, minorities, and above all, women—enrage Alito. He’s dedicated his life to keeping people like that in their proper place—and he’s won more than lost, unfortunately. You might say that Roberts is an establishment conservative while Alito is tea party/evangelical.
The differences between them were on display in the two biggest cases of 2015, King v Burwell, Obergefell v Hodges. The former was, of course, the health care subsidies case, where the far-right made a preposterous argument that the Affordable Care Act authorized subsides only on state exchanges, not the federal one. This was a rare case where the institutional interests of business collided with those of the Republican Party/conservative movement. Roberts sided with business (and intellectual honesty). Alito sided with the conservatives. Meanwhile, in the same-sex marriage case, they voted the same way, yet their dissents were quite different: Roberts actually expressed some sympathy for gay couples, and implied he’d entertain the idea of same-sex marriage as a policy matter, though he did not believe it to be a constitutional right. (He’d never lead on it if he were in a policy debate, you can be damn sure of that.) Alito expressed no such sympathies. His only concern was for the good Christian folk who were being violated by having this new orthodoxy of equality for LGBT citizens forced upon them.
In any event, once Roberts and especially Alito joined the Court, conservatives were off to the races. Although conservatives had held majorities since 1969, some of them had always been relatively moderate—Powell, White, Stewart, O’Connor. Now there were four extreme conservatives, who usually could count on Kennedy. Thus: (roughly in chronological order)
Ledbetter v Goodyear. Alito’s first major opinion for the Court. The horrific ruling that effectively legalized pay discrimination. Equal Pay law says a worker has 180 days to file suit. The five conservatives declared that meant 180 days after the very first discriminatory paycheck—once Lilly Ledbetter didn’t file suit then, she wasn’t entitled to sue after the next 20 years’ worth of discriminatory paychecks. The first of Alito’s signature rulings—distort the law to keep a disfavored group, women this time, in their proper place. Ginsburg read her strong dissent from the bench, and called on Congress to pass a law reversing the ruling. Democrats did so, and Obama signed the law—the very first piece of legislation he signed. So, that dispensed with one bad ruling, but many others still remain in force. (Side note—a few days before the 2009 inauguration, Obama and Biden paid a visit to the Supreme Court. Alito was the sole justice to snub them.)
Morse v Frederick, further restricting student free speech rights. Upheld the suspension of a student who unfurled a “Bong Hits 4 Jesus" banner at the 2002 Olympics.
Gonzales v Carhart, upholding a ban on partial-birth abortion. De facto nullifying Stenberg v Carhart, which had struck down such a ban seven years earlier. Alito had replaced O’Connor.
Parents Involved v Seattle. A gross perversion of Brown v Board of Education, where the five conservatives ruled that race cannot be used to integrate schools. It was here that Roberts penned the notorious lie: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Had Kennedy joined that opinion, it would probably have meant the end of all affirmative action. But he did not do so, writing a separate concurrence.
Bowles v Russell, where the Court denied an inmate the right to file a claim because the judge made an error. Judge said he had 18 days. Law said 14. He filed in 17. Tough, said the SCOTUS.
Hein v Freedom From Religion Foundation In 1968, Flast v Cohen held, 8-1, that taxpayers had standing to challenge governmental monetary support of religion. Ever since then, conservatives have been chipping away at that ruling—they want a Christian theocracy. This was one such case, which 5-4 upheld the Bush administration’s support of faith-based initiatives, ignoring Flast.
DC v Heller. The infamous gun rights decision. The one that held, for the first time, that the 2nd Amendment confers an individual right to bear arms. At one point, that idea was considered a “fraud” even by conservatives. (See this comment thread: www.dailykos.com/...) In 2008, it became the law of the land. We are all the worse off for it.
Citizens United. We all know the result. What’s less well-known is that the case started as a question of whether Citizens United, the conservative advocacy group, was allowed under McCain-Feingold to show a film trashing (wait for it) Hillary Clinton. John Roberts and Co. could have confined their ruling to that, but they wanted more. So, they changed the nature of the case and the questions presented, and struck down most limits on campaign finance. Also of note: Donald Trump hired the president of Citizens United, David Bossie, to work for his campaign.
John Paul Stevens wrote a 90-page dissent, which he read from the bench. He’d been considering retirement anyway, but this pushed him over the edge. At age 90, he called it quits. Obama chose Elena Kagan over the more liberal Diane Wood, to try to appease the GOP (as was his wont). Only five GOP senators voted for her, though, and Ben Nelson voted against her. Thankfully, Kagan has proven to be a solid justice. Her replacing Stevens and Sotomayor replacing Souter largely maintained the status quo—except in an important way I’ll describe shortly.
Walmart v Dukes Drastically limiting class-action lawsuits against corporate wrongdoers.
AT&T v Concepcion, upholding forced arbitration and thereby denying victims of corporate malfeasance any chance for redress. Your phone company overcharges you $30? You pay more than that to go to arbitration, or you let them keep the $30. Don’t even think about class-based arbitration or a class-action lawsuit, sucker.
Vance v Ball State, limiting recourses for victims of workplace harassment.
Shelby County v Holder, resurrecting the racist states’ rights argument to strike down the Voting Rights Act, a longstanding conservative goal. Very quickly, states that had been covered began passing laws designed to keep minorities, youth, etc. away from the polls.
McCutcheon v FEC, expanding Citizens United and abolishing some individual contribution limits. Used to be that people were limited how much total money they could contribute in an election cycle. Not anymore.
Schuette v Coalition to Defend Affirmative Action. After Grutter, Michigan enacted, by popular referendum, a ban on affirmative action. The Court upheld it, 6-2, Kagan not voting since she had worked on this case as solicitor general. Breyer made a pretty reasonable argument—affirmative action is a policy choice, and Michigan has the right to implement it or not to. The reason I’m including this case in my list, though, is Sotomayor’s dissent. She speaks very frankly about race in America, and skewers that Roberts line from Parents Involved. She wrote: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the effects of centuries of racial discrimation.” Nailed. Absolutely nailed. She is great.
Harris v Quinn, which limited the ability of home health care workers to unionize, and invited a case where the conservatives could overrule Abood v Detroit Board of Education, making all public-sector unions right-to-work. (Basically, declare that Scott Walker’s policies are constitutionally mandated.)
Hobby Lobby, granting for-profit corporations the right to refuse to provide certain types of health coverage if the owners say their religion prohibits it. Funny how Hobby Lobby the company won’t cover birth control but will cover Viagra. And of course the case opens the door for much more. This was the first time ever that the Court had held that freedom of religion means powerful people can defy the law and deny something to third parties, something to which the third parties are entitled under the law.
Utility Air v EPA, Michigan v EPA, striking down the Obama mercury regulations.
Glossip v Gross, upholding the use of a lethal injection chemical that effectively burns people alive. Notable about this case is that lead petitioner Glossip is innocent of the crime for which he is scheduled to be executed. Also notable is that Breyer’s dissent, joined by Ginsburg, expresses his newfound view that the entire death penalty is probably unconstitutional.
All of these cases were/are enormously consequential, ranging from bad to outright disastrous. And all but Schuette were 5-4, with Kennedy joining the far right. I’m sure I’ve left out many cases. The damage will take much time to undo.
We should note that liberals did win some cases over this time, but far fewer than we lost. Important wins were:
Hamdan v Rumsfeld, striking down Bush’s military commissions as violations of US law and the Geneva Conventions. The GOP Congress then, of course, passed the Military Commissions Act, authorizing pretty much exactly what the SCOTUS had struck down. They also barred the federal courts from hearing any cases brought by detainees. Which gave rise to:
Boumediene v Bush, where the Court struck down the latter portion of Military Commissions Act as unconstitutional. It amounted to suspension of habeas corpus.
Massachusetts v EPA, which ruled that the EPA had the authority to regulate greenhouse gases (but see above—the Court has undermined the EPA in several other cases).
Kennedy v Louisiana, reaffirming Coker v Georgia—only murder can be a capital offense. Rape is not. The convict had been sentenced to death for raping a child. Heinous a crime as that is, the Court said it is not a capital crime.
Graham v Florida, Miller v Alabama, Montgomery v Louisiana, ending life without parole as a sentence for juvenile offenders.
NFIB v Sebelius, upholding the individual mandate of the ACA. As we know, this was a very close call. Roberts originally voted to strike down the mandate, then changed his mind. Meanwhile, the other four adopted the most extreme position possible, voting that the whole law was unconstitutional. Only one lower court judge adopted that ruling, which would revive the Lochner interpretation of law that says pretty much any federal economic intervention is unconstitutional. And this was not a complete victory. Roberts endorsed the idea that the ACA cannot be sustained under the Commerce Clause—only the tax clause. Also, Kennedy and Scalia had voted in Gonzales v Raich in 2005 that growing marijuana for personal use was interstate commerce. Now, the largest sector of the economy was not. Okay.
US v Windsor, striking down the heart of the Defense of Marriage Act. Scalia dissented, and expressed concern that it could lead to legalization of same-sex marriage. To which most judges who then heard same-sex marriage cases said: Great idea!
Obergefell v Hodges, legalizing same-sex marriage nationwide. I don’t think that needs further elaboration.
Texas DHCA v Inclusive Communities Project, upholding the Fair Housing Act. The Fair Housing Act can be enforced in two ways: prove intentional discrimination, or argue for disparate impact—i.e. a policy disproportionately impacted a minority community, even if it was unintentional. The latter was by far the more effective tool for fighting discrimination. Intent is quite hard to prove. The conservatives tried to use this case to get rid of disparate impact claims. Thankfully, they failed.
AZ Legislature v AZ Redistricting Commission, upholding the voter-approved independent commissions used for redistricting in Arizona. The GOP legislature had tried to argue that it was unconstitutional. Here, too, they failed to get Kennedy’s vote.
King v Burwell, rejecting the absurd claim that the ACA does not authorize subsidies on the federal exchange.
Of note: the last four cases were all decided in 2015, the only term of the Roberts Court that wasn’t a bloodbath for liberals. It’s the sole term where Kennedy voted with the liberals more often than he voted with the conservatives in 5-4 cases. Also, every liberal victory here was decided by a 5-justice majority except King and Montgomery, which were 6-3 with the liberals, Kennedy, Roberts outvoting Scalia, Alito, Thomas. Most often, it was Kennedy joining the liberals, except in the mandate case where it was Roberts. And if I have missed any liberal victories, it’s certainly a smaller number than the conservative victories I missed.
2016—Deadlock
So we arrive at 2016. That term shaped up very badly for liberals. The union case that Alito invited--Friedrichs v CTA, to insert right-to-work into the Constitution. An abortion case—Kennedy had upheld every restriction that ever came before him, all except one. Affirmative action---never once had Kennedy voted to uphold an affirmative action program, and Kagan would be recused, depriving liberals of a vote. Voting rights—the far right groups that had brought the lawsuit against the Voting Rights Act had now brought a lawsuit that raised the question---must states count only eligible voters, rather than total population, when drawing districts? If so, it would shift representation away from minorities/urban areas to white/rural ones, which the conservatives would like. Considering the history of these justices, liberals had every reason to dread these cases.
On February 9, the day of the New Hampshire primary, the conservatives did something else quite radical—issued a stay and declared that Obama’s climate change plans could not go into effect until their legality had been worked out in court. That’s unprecedented—courts never stop regulations preemptively like that. Everyone took that as a sign that the SCOTUS would certainly overturn the regulations when it got the chance.
And then Scalia died.
And suddenly, where it was almost impossible to win, it now became very hard to lose. A 4-4 split would simply affirm the lower court—thus, in the union case, the circuit’s ruling in favor of the unions stood, and the unions were saved. On the other hand, the immigration split upheld a ruling against the Obama administration.
In Zubik v Burwell, the Christian right proposed to expand Hobby Lobby. Obama crafted an accommodation for Hobby Lobby that would allow female employees to get the birth control anyway. Wasn’t good enough for the Christian employers—they wanted the right to prevent their employees from getting birth control, end of story. And had Scalia lived, they would have gotten that right. Instead, the Court punted.
In Evenwel v Abbott, the voting rights case, the Court unanimously ruled that using the total population is allowed. They did not require it (the question was not presented to them). Alito’s concurrence highlighted this point, and hinted he’d like to see states try to use eligible voters instead. Thomas used the occasion to attack one person one vote again.
The term ended on two surprising notes. Kennedy voted with the liberals in the abortion case, striking down the Texas law 5-3. Even more astonishingly, he voted for the first time to uphold an affirmative action program in Fisher v UT Austin.
This last is where Sonia Sotomayor comes into play. She is a very strong voice on racial issues, highlighting her own past and the fact that she benefited from affirmative action. We can witness her fierce dissents in Schuette, and this year in Utah v Strieff. When Fisher reached the SCOTUS the first time, the word is Kennedy was prepared to strike down the program—but Sotomayor’s dissent was so forceful and scathing that it caused him to reconsider and punt the case back to lower court. The second time, he voted to uphold it. I’d say the opinion in the 4-3 ruling was Kennedy’s, but the victory was Sotomayor’s.
Thus, a term that shaped up as a disaster ending with justice dodging a bullet and winning two unexpected victories—in large part because Scalia died. What a difference one justice makes.
The Future
If Clinton wins and Democrats win the Senate, Scalia’s replacement will mark only the second time since 1967 that a justice has been replaced by someone more liberal. And it will mark probably the biggest swing of a single seat since Thomas replaced Marshall.
If we can get that fifth liberal vote, be it Merrick Garland or somebody else, then we can reverse all those terrible conservative rulings above. Most of all Citizens United. And why stop at just reversing those? Let’s think bigger—what liberal causes could SCOTUS help advance? Not just rejecting conservative positions.
Of note: None of the current liberals, or Garland, are in the mold of Brennan/Marshall. But to advance a lot of our causes, they probably don’t have to be. Even if Garland simply takes over from Kennedy as the new median justice, that will swing the Court considerably leftward, and be enough to reverse the bulk of the disastrous rulings listed above (as soon as we send them a case to do it). And adding Garland would, nonetheless, get us five left-of-center justices for the first time since 1969.
To add Garland or anyone, though, it is not enough to elect Hillary Clinton. We need a Democratic Senate. John McCain made the GOP position quite clear—they will not confirm anyone Clinton nominates. If they keep the majority, they will have power to block anyone she appoints. And they will use it. And they will get away with it. Seriously, when have they NOT gotten away with it? They paid no price for the 2013 shutdown, they paid no price for blocking Garland this year, and the Senate map in 2018 is very, very favorable to them. Plus, the president, not Congress, gets blamed when stuff doesn't get done. That’s the way it is. Let’s go take back the Senate so Clinton can appoint justices. Because it isn’t just Scalia. Ginsburg is 83, Kennedy 80, Breyer 78. If the GOP waits until they all die, then it’s Roberts, Alito, Thomas outvoting Sotomayor and Kagan. Don’t try to apply logic or reason here. Remember, to the GOP, winning is not the first thing. It’s the only thing. It would be very easy for the GOP to block Court nominees for four years—most Americans have no clue what the Court does and can’t even name one justice.
But we know what it does. We know the importance. Let’s go elect Clinton and take back the Senate.