Federal Courts and Nominations

If You Were Born After 1969, You Have No Idea What A Liberal Supreme Court Is

By Cristian Farias & Paul Blumenthal

Steven Shapiro will step down as national legal director of the American Civil Liberties Union next month. During his 23-year tenure leading the group’s legal strategy, he has never known a liberal Supreme Court. For almost a generation, neither has much of the country.

But the election on Tuesday could change that.

“For much of my career, the strategy has been to keep cases away from the Supreme Court rather than push cases toward the Supreme Court for fear of what the outcome might be,” Shapiro said. “That conversation will be recalibrated depending on what the next Supreme Court will look like.”

That look could change drastically in the near future. The death of Justice Antonin Scalia in February has opened the door for the first time in nearly than 50 years for the possible flip of the Supreme Court’s ideological balance ― from a 5-to-4 conservative majority to a 5-to-4 liberal majority on all the issues where competing visions of the Constitution are at stake.

And that liberal majority could even be more pronounced and long-lasting if the next president gets a chance to replace all three of the oldest sitting members of the court ― Justices Ruth Bader Ginsburg, 83; Anthony Kennedy, 80; and Stephen Breyer, 78.

As evidenced by the Republican Party’s blockade of President Barack Obama’s nomination of Merrick Garland to Scalia’s seat ― and a recent shift to even more years of obstruction if Hillary Clinton is elected to the White House ― conservatives are well aware that they have controlled the Supreme Court since Richard Nixon defeated Hubert Humphrey in 1968. And they don’t want to give that power up.

What has that power meant? Well, if you were born after Nixon was first elected president, you simply have no clue what a liberal Supreme Court looks like.

Here’s another way of phrasing that: If you are anywhere between the ages of 0 and 47 years old ― that includes both of this article’s authors ― you have never lived a day of your life with a left-of-center majority in the most powerful institution in the judicial branch of government. That has had a tangible impact on what world you live in.

“Over the course the past decade and even longer than that, we’ve seen a rightward shift in the law in a number of different areas,” said Brianne Gorod, chief counsel for the Constitutional Accountability Center, a progressive legal advocacy group that is beginning to take stock of what this shift would mean for its work. “The possibility of a fifth Democratic appointee on the court won’t change things overnight, but it does present a real opportunity to course-correct.”

In ways big and small, the conservative court dominance that began in the late 1960s has meant increasing power for corporations and the rich; decreasing rights for citizens and labor unions; a harsher and more punitive criminal justice system; higher barriers for access to the courts; and the stalling, gutting or full-scale rollback of civil and voting rights.

Often viewed as a transitional court from the liberal powerhouse led by Chief Justice Earl Warren, the Burger court inaugurated conservative control of the court in 1969 ― the year Nixon appointed Warren Burger to replace the retiring Warren. In time, Nixon made three more appointments that pulled the court to the right, but with a stronger center that made the changes heralded by the Warren era appear subtle.

Chief Justice Warren Burger (front row, center) led the conservative shift of the Supreme Court after being appointed by President Nixon in 1969.

“The Warren court had made the promotion of equality its central mission ― voting equality, school equality, equality for criminal defendants,” said Columbia law professor Michael Graetz, co-author with Linda Greenhouse of The Burger Court and the Rise of the Judicial Right, released in June. “In the Burger court, equality was no longer terribly important. And a whole series of other values ― local interests, states’ rights, business interests ― took precedence. So you had a transformation in the guiding values of the court due to the Nixon appointments.”

Among other changes to the constitutional landscape, the Burger court struck down and then quickly reauthorized the death penalty, gutted school busing designed to end segregated schools, put important limits on affirmative action policies, and upheld the unequal distribution of public school funding based on property tax lines.

Further, the new conservative majority weakened the post-Watergate campaign finance laws and declared that corporations had both a First Amendment right to spend unlimited sums on ballot initiative campaigns and on commercial advertising.

“If you’ve seen drug commercials, that’s due to the Burger court,” Graetz said. “And they laid the foundation for corporate speech that the court created in Citizens United. So it was a very pro-business court.”

The rightward pull continued unabated when the leadership of the court changed hands to Chief Justice William Rehnquist, who was later joined by other Ronald Reagan appointees that included Kennedy and the late Scalia. By then, the conservative majority was somewhat looser thanks to the countervailing force of a moderate Reaganite, Sandra Day O’Connor, and the far more liberal John Paul Stevens and David Souter, nominated by Gerald Ford and George H.W. Bush, respectively.

It’s those “bad” Republican appointments that led the party and its allies to be ever more careful and judicious with its vetting of nominees to the Supreme Court. And in a sense, the elder Bush’s appointment of Justice Clarence Thomas to succeed liberal lion Thurgood Marshall did just that, solidifying the court’s conservative stranglehold ― which the later nominations of Justices Ruth Bader Ginsburg and Stephen Breyer by President Bill Clinton couldn’t quite shake out.

“At the time, liberals thought the Rehnquist court was the worst ― certainly I did,” said Ian Millhiser, a senior fellow at the Center for American Progress and author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted. “And it did shut down most liberal hopes that they could advance their agenda through litigation.”

As fate would have it, it was the retirement of O’Connor ― precipitated in part by Rehnquist’s ailing health and eventual death ― that dashed those hopes further, ushering in the more radically conservative Roberts court, so named after its current chief justice, John Roberts. In the 11 years since he’s been at the helm, the court’s legacy, now at an inflection point, has been defined by its extreme pro-corporate bent and its dismaying record on race issues.

According to a study by Lee Epstein, William Landes and Richard Posner, the Roberts court is the most pro-corporate court in generations. Where the win rate for business petitioners had been 54 percent under the Burger and Rehnquist courts, the Roberts court sided with business 64 percent of the time.

Similarly, a study by the Constitutional Accountability Center examined cases in which the U.S. Chamber of Commerce, the nation’s largest corporate lobby group, took a side. Its analysis found that the Roberts court sided with the Chamber 69 percent of the time. That was significantly higher than the Chamber’s 43 percent and 57 percent success rates in the Burger and Rehnquist courts, respectively.

Chief Justice John Roberts has pushed the Supreme Court further right, particularly on issues related to corporate power, race and campaign finance.

The court’s corporate tilt has allowed corporations to force consumers and small businesses into arbitration hearings that favor the company rather than pursue lawsuits. It has stripped states of laws protecting patient privacy and safety from pharmaceutical companies. The court has even allowed mutual fund advisers to get around laws preventing them from lying to investors by hiding behind fictitious names.

Of this long line of cases, perhaps none looms larger than Citizens United v. Federal Election Commission, the 2010 decision that extended the corporate political speech rights that the Burger court, in Graetz’s words, created “out of whole cloth.” The court not only opened the door to the current era of super PACs and dark money, but also rewrote the definition of corruption in the law.

Taken together, the Roberts court’s pro-corporate record, as constitutional lawyer and current Democratic congressional candidate Jamie Raskin writes, “aggressively enlarges the political and social power of corporations by imputing to them the individual constitutional rights of the people.”

On matters of race, the Roberts court fares no better — although Kennedy, at least in recent years, appears to be reconsidering his stance on affirmative action and certain civil rights protections.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” wrote Roberts early on in his tenure in a school integration case― spelling out his colorblind vision for the Constitution and prompting the court’s then-most-senior liberal, Stevens, to accuse him of rewriting the history of Brown v. Board of Education.

Fast-forward to 2013, and Roberts, in his 5-to-4 majority opinion in Shelby County v. Holder, helped put a bullet through the historic Voting Rights Act of 1965 because, in his view, “things have changed dramatically” in the South ― and “extraordinary measures to address an extraordinary problem” were no longer justified. Racism, in Roberts’s worldview, seemed a thing of the past.

No longer subject to the Voting Rights Act, emboldened Southern states immediately sprang into action. North Carolina, having come under full control of the Republican Party in 2013, went forward with a “monster” voting law that specifically targeted African-American communities for a reduction in early voting sites, times and locations. The state also implemented voter identification laws specifically tailored to make it harder for African Americans to obtain the necessary identification to vote.

This past July, the scheme by North Carolina Republicans was found by a federal court to be a specific attempt to disenfranchise African Americans in the state. The court said that the laws “target African Americans with almost surgical precision.” (If Roberts had any say in the matter, he would’ve blocked that ruling from being enforced for this presidential election.)

Since Scalia’s death put the prospect of a fifth Democratic appointee within the realm of the possible, this dire history could well remain in the Supreme Court’s rearview mirror very soon. For someone like Gorod, whose work at the Constitutional Accountability Center includes thinking of ways of getting courts to adopt a historic yet progressive reading of the constitutional text, this may very well be a turning point.

“If a majority of the court is truly committed to following the text and history of the Constitution and respecting the laws passed by Congress, that should produce more progressive outcomes than we’ve often seen from the current court ― in areas ranging from campaign finance and voting, to race and access to the courts,” she said.

The ACLU’s Shapiro, for his part, said his organization will likely seize on this shift, even if he’s not there to spearhead it all ― in areas such as criminal justice, abortion rights, access to justice, and racial equality, to name a few.

“It certainly opens up possibilities that haven’t existed for a while in the Supreme Court,” he said.

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