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September 19, 2007
The Far-Right Court
It's worth reading Cass Sunstein's article on how far the Court's swing to the right has been:
In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.
First we would have to chop off the Court's right wing, removing Scalia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.
Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.
Then we would have to leave Breyer, Stevens, Souter, and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart....The upshot of all these shifts is that what was once on the extreme right is now merely conservative. What was once conservative is now centrist. What was centrist is now left wing. What was once on the left no longer exists.
And though it seems a bit silly to actually write this, these differences matter:
The consequences are huge, both for constitutional law and for public debate. When Kennedy, rather than Stevens, looks like the moderate, people's sense of constitutional possibilities, and of what counts as sensible or, instead, extreme and unthinkable, shift dramatically. Not long ago, Marshall and Brennan served as the Court's visionaries, offering a large-scale sense of where constitutional law should move. They thought it preposterous that affirmative action should be treated the same as old-fashioned racial discrimination, and their views on that question put real pressure on the Court's center. They wrote in clear, bold strokes against decisions to invalidate campaign-finance restrictions and to restrict access to federal court; their opinions pressed the Court toward moderation on those subjects.
Read the whole thing, get depressed, etc.
September 19, 2007 | Permalink
Comments
Right.
But the 1980 court was probably to the left of 90% of public opinion. The one today is STILL to the left of the majority of public opinion, but it's only at maybe 55%. Or maybe it's at 45% on most issues--but it's still to the left of median on any establishment clause questions.
Posted by: SamChevre | Sep 19, 2007 2:42:41 PM
If the Dems can secure bigger majorities in Congress - with more progressives and fewer blue/bush dogs percentage-wise, I'd be up to serious talk about court packing through expansion of the SCOTUS membership, ala FDR in the mid-30's. Whether it is expanded to 13 or two panels of 7 each (with the current court split into two, breaking up the Roberts, Scalia, Thomas, Alito block), the threat of expansion might be enough - as it was in FDR's day - to get the court's attention and moderate its positions. (Note: the size of the SCOTUS is set in federal statute, not the Constitution, and the size has varied some over time.)
Expansion of the court would be easily justified by increasing court case load and increased complexity of society, our economic environment, and our social structures.
As a famous saying goes: 'the court reads the election returns'
Sam: is the court to the left of the public on abortion? Evidence?
Is the court to the left of the public on campaign financing? Evidence?
Is the court to the left of the public on executive powers and constitutional protections? Evidence?
Is the court to the left of the public on observance of international treaties - like the Geneva Conventions? Evidence?
And I really doubt that on fairly balanced questions of separation of church and state, the court is to the left of the country.
Posted by: JimPortlandOR | Sep 19, 2007 3:24:14 PM
Jim,
I'll try to answer a couple of your questions--I don't know for most of them, though.
Is the court to the left of the public on abortion? Evidence?
Assuming "left" means "more allowing of abortion", yes. A fairly consistent 60% of Americans support "more restrictions than now" on abortion. (See the 30th anniversary of Roe polls.) I think "what do you think on abortion" questions are more informational than "what do you think of Roe v Wade" since Roe isn't very precisely understood.
Is the court to the left of the public on executive powers and constitutional protections? Evidence?
Assuming "left" means "more willing to give power to the federal government and executive agencies", yes. Not sure what would count as evidence though, so count it as an opinion.
And I just disagree with you on church and state. I suspect that student-led prayer at football games, and public display of the Ten Commandments, would be supported by majorities in the US. I don't know of any good polls, though.
Posted by: SamChevre | Sep 19, 2007 3:40:52 PM
I don't love analysis like this... yes, I think we have a more conservative Court, but there are a lot of things that go into this, and I disagree with the stated premise in the subtitle - it's less obviously what Sunstein wrote - that people don't change (i.e. that Stevens hasn't moved). I'd argue that Stevens has, in fact, changed his views somewhat from the decisions I remember in my youth, and seems to understand that he now has more of a "voice of experience" than he used to.
I think the bigger thing is, this stuff doesn't happen in some sort of judicial vacuum; we, as a nation, are not where we were in 1980. A lot has happened, much has changed, and a lot of notions about the law, what it can do, and how it should be interpreted are not where they were then. We have to live with those changes. Again, I'm not saying I'm thrilled with the current composition of the Court (especially since Bush's appointments), but people who prefer "conservative" justices do have a point: there were viewpoints on the law not represented on the Court then, that are now. I may not agree with Scalia; I'm not sure I agree with theories that he has no place on the Court.
I'd much rather see a general push for excellence on the Court over ideology - a bright, engaged jurist to me is preferable to an ideologue on any side who is so locked into a particular viewpoint, refusing to consider alternatives (which, really, is my notion of liberalism, but still). It's not that I don't think Clarence Thomas should be on the Court because he's conservative; I think he should have been rejected because he's not very good.
I think the most debatable thing about the way conservatives have approached the politicization of appointments to the Court is the notion that you can expect a fixed, predetermined notion of how people will decide cases from the time they join until they die or retire; history has shown, repeatedly that Justices grow, change, rethink, and restate their opinions on all sorts of aspects of the law. Conservatives have had a hard time finding an acceptable minority or woman candidate from their ranks not because they don't have good resumes, but because they don't past this long-term ideological test. If you can't be sure that, for instance, they will oppose abortion from now until the end of time, to conservatives, the person is of no use. Our best response, it seems to me, is not to find the people who will rule in favor of abortion from now until the end of time and never change... but to find smart people who think deeply about the law. By agreeing that ideology is all, we're not making the politicization of the Court easier. We're just arguing over who's politics should win out. I'd rather mine did, sure; but I also wish we'd try and accept that perhaps that's not the best standard all the way around.
Posted by: weboy | Sep 19, 2007 4:42:33 PM
"I'd rather mine did, sure; but I also wish we'd try and accept that perhaps that's not the best standard all the way around."
Sure it is.
I want William Douglas back. Maybe we could just get his votes by measuring the spins underground. Nominate him, HRC!
Posted by: bob mcmanus | Sep 19, 2007 6:12:19 PM
Brennan and Marshall tried to use the Court and the Consitution to create positive rights, to economic benefits and other government largesse. Many lower court judges, particularly Johnson appointees, did the same.
Their intentions were honorable, but they were wrong. Their efforts did violence to the Constitution, which is fundamentally aimed at negative rights (rights to be left alone) from various kinds of government interference.
They helped provoke a backlash that more or less destroyed the structure of positive rights that they invented, and also gave cover to those who wanted to undermine the negative rights--the civil liberties-- that the Consitution really was designed to protect. Americans rightly suspected that liberal judges were using their power to create public policies to their liking, and came to accept the conservative counter-revolution in which federal courts have retreated from their most basic duties.
On those grounds, I think the famous liberal justices might have some regrets, if they were still with us.
Posted by: jbd | Sep 19, 2007 6:32:45 PM
jbd,
Explain this statement:
"Their efforts did violence to the Constitution, which is fundamentally aimed at negative rights (rights to be left alone) from various kinds of government interference."
In relation to liberals on the court striking down laws that prevent a woman from controlling biological functions of her own body? Please do not religious reasons, the constitution is clear on the separation of Church and State.
In relation to liberals on the court striking down laws that prevented non-white folks from equal access to public facilities?
In relation to liberals on the court striking down laws that prevented, those who were non-white from voting.
How did those liberals do "violence to the Constitution" by striking down those laws?
Please explain?
Posted by: S Brennan | Sep 19, 2007 7:06:50 PM
Anyone who thinks that the current court is anywhere near left of current nationwide opinion is just misinformed:
http://mediamatters.org/progmaj/report
Posted by: H.L. Mencken | Sep 19, 2007 7:23:34 PM
I remember when Sandra Day O'Connor retired, and suddenly the conservative Anthony Kennedy transformed into a moderate by the press. O'Connor, of course, had previously magically transformed from conservative to moderate when Clarence Thomas joined the court.
It's an unfortunate result of journalists not understanding the difference between being a swing vote and being a centrist.
Posted by: Jinchi | Sep 19, 2007 7:46:55 PM
It's a pity that the Court doesn't match up with public opinion, so there would be no need for it.
Posted by: Steve | Sep 19, 2007 9:48:49 PM
I remember taking Constitutional Law in 1982 and finding Stevens to be objectionably conservative. Oh, to know so little about how things were going to go.
JP, all is forgiven. Live forever my man. Or at least until 1/20/09.
Posted by: Klein's tiny left nut | Sep 19, 2007 10:31:42 PM
I may not agree with Scalia; I'm not sure I agree with theories that he has no place on the Court.I don't agree with Scalia much either, but I completely agree that he has a place on the court. I just happen to think that *four* archconservatives on the court is rather excessive.
I think the court should represent a broad spectrum of opinions and Scalia is certainly well qualified to be part of that spectrum. Thomas, Roberts and Alito in addition make the court too homogeneously conservative. I'd fire at least two of them and replace them with some real left wingers like Marshall and Brennan. Not primarily because it would change the outcome of cases (although it probably would change some), but because it would allow all points of view to have a voice and be considered in the Court's decisions.
I don't advocate rigid ideological quotas, but there should be some attempt at balance and representing all points of view. And right now, there isn't anything remotely close to that. We have some moderates, some conservatives and some extreme conservatives. It's more or less accepted to pack your own Cabinet with ideologues, but trying to do the same to the judiciary (either the SC or any lower court) is a dangerous subversion of the Constitution.
Posted by: Chris | Sep 20, 2007 11:19:50 AM
S. Brennan, thanks for your reply, which I just saw. I did not say that all decisions of the old liberal court were wrong, or that all of their decisions were examples of creating positive rights. If I say that the Court rendered decisions that did violence to the Consitution, does that mean I'm saying that ALL of their decisions did so? What kind of a straw man is that?
What I said was, federal judges created a lot of precedent in this period to manufacture positive rights that unreasonably stretch the Consitution, and in doing so they undermined their credibility and encouraged a public backlash that has left the courts less willing and able to protect our real constitutional rights to be left alone by the government. Examples from higher and lower courts are legion (many were later reveresed in the conservative backlash): "rights" to public education, welfare benefits, public housing, physical accommodations for the handicapped, publicly funded abortion.
Some or all of these may be good policy, but they aren't constitutional rights. Peruse the old federal reporters from circa 1965 to 1980 or so and look at what federal judges were trying to do. It backfired. That's my point.
Posted by: jbd | Sep 20, 2007 2:26:33 PM
Roberts and Alito
Are...not...accidents.
They...are...Federalist Society clones.
Where..is...OUR response to all that
Patient Activism?
Posted by: has_te | Sep 20, 2007 10:40:56 PM
Roberts and Alito
Are...not...accidents.
They...are...Federalist Society clones.
Where..is...OUR response to all that
Patient Activism?
Posted by: has_te | Sep 20, 2007 10:42:14 PM
