The Beginning Of The End Of The ‘Conservative’ Supreme Court
Depending on the outcome of the election, the Supreme Court's just concluded term will most likely be remembered as the point at which the Court's rightward tilt that began at the end of the Warren Court Era came to an end.
New York Times Supreme Court reporter Adam Liptak notes that what was supposed to have been a term in which the Supreme Court’s conservatives steered the nation’s highest Court in a decidedly more conservative direction instead ended up moving the Court somewhat to the left on several important issues, and suggests where the Court may be headed depending on the outcome of the election:
WASHINGTON — Conservatives thought this Supreme Court term would be different.
Still reeling from losses last year in major cases on health care and same-sex marriage, they welcomed a new docket in October studded with cases that seemed poised to move the law to the right.
But then came two unexpected turns of events. Justice Antonin Scalia, the longest-serving member of the court’s five-justice conservative wing, died. And Justice Anthony M. Kennedy veered left in two of the term’s biggest cases, joining the court’s liberals in significant decisions favoring affirmative action and abortion rights.
For the second term in a row, the court led by Chief Justice John G. Roberts Jr. delivered liberal decisions at a rate not seen since the famously liberal court led by Chief Justice Earl Warren in the 1950s and 1960s.
Yet the court, which ended its term on Monday, remains in a period of great transition. With one vacant seat and the possibility of more to come, it is almost certainly entering a new era, the shape of which will depend on the outcome of the presidential election.
For now, Justice Scalia’s absence has handed Chief Justice Roberts the difficult task of steering his colleagues toward consensus in big cases. Over the past term, when he succeeded the resulting decisions were sometimes so narrow that they barely qualified as rulings. When he failed, the court either deadlocked or left him in dissent.
Before Justice Scalia died, the court had agreed to hear cases that conservative advocacy groups hoped would help business interests and Republican politicians, while dealing setbacks to public unions, colleges with racial admissions preferences and abortion providers. Just four days before his death, the court seemed to send an assertive signal, blocking the Obama administration’s effort to combat global warming by regulating emissions from coal-fired power plants. The vote was 5 to 4, with the court’s conservatives in the majority.
As soon as it was announced that Justice Scalia had died, it was apparent that his absence from the Court would have a significant impact on the remainder of the Court’s current term, especially since it was evident that it was unlikely that any replacement could be approved in time to participate in the briefing, argument, and decision of the remaining cases even if the Senate had decided to move expeditiously on the President’s nomination. I detailed many of the cases where Scalia’s death would likely have an impact and it didn’t take long for that impact to begin to manifest itself. In Friedrichs v. California Teachers Association, for example, the Court split 4-4 in a case when, based on oral argument, it was apparent that Scalia would have joined the Court’s four conservatives in handing public employee unions a major defeat. Instead, the tie meant that the ruling below by the Ninth Circuit Court of Appeals stood and what could have been a major loss for unions turned into a major victory instead. Similarly, the Supreme Court ended up in a 4-4 tie in the case filed by Texas and a group of other states challenging President Obama’s executive action on immigration. While that decision did let the stay imposed by the lower court stand, the absence of Justice Scalia meant that the Court was unable to issue the more sweeping ruling that it seemed to contemplate when it accepted the case for review. Other cases in which the Court seemingly moved to the left in the absence of Justice Scalia include the latest challenge to the PPACA’s birth control mandate, a challenge to the meaning of ‘one person, one vote,’ and, of course, the challenge to Texas’s abortion law, which resulted in a decision that largely reaffirms Roe v. Wade and the Court’s 1992 holding in Planned Parenthood v. Casey. While Justice Scalia’s vote would not have made a difference in these cases, one can argue that the loss of his rhetorical voice may have resulted in other Justices becoming more assertive:
Vikram Amar, dean of the University of Illinois College of Law, said there had been a change in tone at the court since Justice Scalia died. “In Fisher,” Dean Amar said, “even though the dissent Justice Alito read from the bench was frank, it was not as barbed and incendiary as Justice Scalia’s likely would have been.”
Justice Kennedy also joined the court’s liberals in a 5-to-3 decision on Monday striking down parts of a restrictive Texas abortion law and strengthening the “undue burden” standard that the court announced in 1992.
The silencing of Justice Scalia’s voice seemed to help other justices find theirs. Two weeks after Justice Scalia died, Justice Clarence Thomas broke a decade-long silence by asking questions from the bench.
Justice Sonia Sotomayor, already a major presence at arguments, took on an even larger role. This month, she wrote a lashing dissent, rooted in the concerns of the Black Lives Matter movement, in a case on police stops.
Justice Thomas remained the most conservative member of the court based on voting patterns this term, while Justice Sotomayor overtook Justice Ruth Bader Ginsburg as the most liberal one, according to an analysis by Lee Epstein, a law professor and political scientist at Washington University in St. Louis, and Kevin Quinn, a political scientist at the University of California, Berkeley.
Justice Sotomayor’s votes in criminal cases also make her one of the most liberal justices since 1937, while Justice Alito is among the most conservative, to the right of even Justice Thomas.
In all, though, the justices are doing what they can to find common ground, Professor Epstein said.
“Without Scalia, it’s still the Kennedy court, but Kagan and Breyer had a very good term,” she said. “Both were in the majority in divided cases over 80 percent of the time, and the Democratic side of the court yet again won victories in some of the term’s biggest cases.”
Beginning in the 1970s with the appointment of Justices such as Warren Burger and William Rehnquist, the Supreme Court slowly began moving away from the leftward tilt it had taken under the leadership of the late Chief Justice Earl Warren, and Justices William Brennan and Thurgood Marshall. While the Court did not go so far as to reverse the landmark rulings of the Warren Court Era in areas such as race relations and criminal law, the presence of Justices such as Burger, Rehnquist, and, for a time, John Paul Stevens and Lewis Powell, on the Court did mean that the Court never did take those areas of the law where some legal advocates on the left had hoped they would eventually go. Eventually, as Justices such as Brennan, Blackmun, Marshall and others were replaced with names like Scalia, Kennedy, and Thomas, with Rehnquist replacing middle-of-the-road Warren Burger as Chief Justice, and the Court continued to move slowly to the right. All of this culminated in the appointment of Chief Justice Roberts and Justice Samuel Alito by President George W. Bush, a move which effectively solidified a conservative core to the Supreme Court that even President Obama’s appointment of Justices Sotomayor and Kagan did not significantly push back on. To put this in perspective, of the There were exceptions, of course, most notably cases such as Roe v. Wade, which was handed down during the early part of the Court’s move to the right, and Planned Parenthood v. Casey, which was handed down in 1992. Later in this period, the Court handed down a series of cases ranging from Lawrence v. Texas and ending with Obergefell v. Hodges which slowly expanded the legal protections available to gays and lesbians under the law. More recently, the right faced disappointment in its Constitutional and statutory challenges to the Affordable Care Act thanks to Chief Justice Roberts siding with the Court’s liberal minority to uphold the law. For the most part, though, the Court’s rulings during this period titled toward the right, and this was supposed to be the year in which conservatives scored significant victories in a wide variety of areas. Instead, thanks in part to the death of Justice Scalia, they faced disappointment and, now, the possibility that the Courts may soon become a much less friendly venue.
Richard Primus of the University of Michigan Law School argues that this term marked the beginning of the end of the Supreme Court’s rightward tilt:
The presidential election is still months away, and Clinton’s election is by no means a certainty. But if it happens, a long period in constitutional development will have come to a close. The conservative victories of the past several decades will not be for naught: A great deal of law has changed, and it will not all be unraveled. But the direction will be different. Rather than asking whether abortion and affirmative action will continue, courts will ask about this or that aspect of abortion or affirmative action on the broad understanding that the practice in some form is secure.
And rather than trying to defend a decades-old status quo against further erosion, liberal constitutional lawyers will start thinking about where they would like to take initiative. Both sides will need to go through a process of adjusting their roles, shifting from offense to defense or vice versa—as they have done before, in other directions, and as they surely will again at some time in the future.
It’s at least possible, albeit not likely given the currently available evidence, that Donald Trump will win the election in November and that, assuming he gets the opportunity to do so, he will appoint relatively conservative Judges to replace those who may leave the bench, then this year, and likely a good part of the next term as well, will mark a mere hiccup for a long term move to the right on the Supreme Court. In all likelihood, though, it’s Hillary Clinton who will appoint new members to the Supreme Court, a task that could begin with appointing Justice Scalia’s successor unless a lame duck Senate moves to confirm Merrick Garland during the lame duck session after the election. Some of those appointments, such as hypothetical successors for Ruth Bader Ginsburg and Stephen Breyer, won’t really have an impact on the direction of the Court, but the Garland appointment most certainly would, and a replacement for Justice Kennedy by a Democratic President would significantly alter the direction of the Court even more than the selection of Justice Scalia’s replacement. At that point, the Court would start moving in a new direction, and it’s not one that conservatives are likely to be happy with. So, depending on the outcome of the election in November, this year will mark either a hiccup for judicial conservatives, or the beginning of the end of a period that began under President Nixon and which had a significant role in shaping Constitutional law and the Courts for the better part of a century. It will take time for that process to work itself out, just as it did during the period that began in 1969, but if Trump loses the outcome seems inevitable. Perhaps Republicans should have given some thought to that before nominating him.