The Court’s Future

Author: Theodore Kupfer, Johns Hopkins


The 45th President will enjoy a rare opportunity to reshape the United States’ most obdurate branch of government. The Supreme Court of the United States, with four Justices older than 76, could soon have an unfamiliar composition. Determining what that composition will be – and figuring how the not-yet-named new Justices reshape the Court’s jurisprudence – depends on the 2016 election. Exactly who fills the robes of Anthony Kennedy, Antonin Scalia, Stephen Breyer, and Ruth Bader Ginsburg will play a significant role in the Court’s apparent recent initiative to decide significant cases.

It is nothing new for someone to proclaim the importance of the upcoming Presidential election. Writing for Salon, an author declared in 2008 that “Obama may have the opportunity to reshape the conservative-leaning court.” Clearly, this didn’t happen. His appointees, although hardly disappointments, kept the Court at its ideological status quo. But the leanings of the Court’s elderly was very different in 2008 than it is now: during Obama’s stint as President, the two Justices (David Souter and John Paul Stevens) who retired were replaced with similarly inclined counterparts. Stevens especially provided the Court’s left with a powerful intellectual beacon, but substituting Souter and Stevens with Sonia Sotomayor and Elena Kagan has not swung the balance of the Court’s split along ‘conservative’ and ‘liberal’ lines. Two things make the 45th President’s ability to change the Court’s character greater than the 44th’s. First, and simply, is the chance to skew the ideology one way or another. Unlike last time, Justices from both sides of a split court are on the verge of retirement, and the President will be able to replace one who disagrees with him with one who agrees with him.

Second, and more important, the four eldest Justices all exert a tremendous influence on the Court’s overall jurisprudence. Scalia pressures conservative Justices to assent to his robust judicial philosophy of “original meaning,” normalizing what was once a fringe belief. He meanwhile skewers any opinion deriving its Constitutional understanding from somewhere other than the Constitution’s text, an approach known as textualism. Breyer, 76, represents the most convincing response to this, employing pragmatism above all. Kennedy – the archetypical ‘swing vote’ – rarely fails to find himself in the majority in landmark cases: he’s been the catalyst behind the Court’s recent disavowal of federal marriage definitions. And Ginsburg stands today as the most ‘progressive’ Justice willing to question everything about the Constitution in favor of decency standards. She, too, infuses the liberal wing of the Court with formidable intellect capable of standing up to the likes of Scalia. Taking any (much less all) of them away, and substituting someone of diametrically opposite jurisprudences, creates a Court whose countenance appears unrecognizable.

If a Republican is elected President, his party will assuredly pressure him to appoint a strong conservative. Candidates for the Republican – note the names Paul Clement and Diane Sykes – don’t share the empathy for gay rights that many Americans lately feel. Congress’ carte blanche capacity to legislate may also be crippled if commerce clause questions appear before the new Court. They are wary of federal laws that regulate action taking place within just one State. How does, to cite a specific case, growing marijuana in one’s house for personal consumption constitute “commerce between the several States”? What about compelling citizens to purchase healthcare with a monetary penalty? Liberal justices look beyond the action for what it is, appreciating potential implications of similar actions. To replace Breyer – who makes a practical approach appear prudent – could render years of precedent obsolete. What something meant to the progressive justices of the 1970s might not be a valid interpretation to seven textualists. Long-accepted legal ‘tests’ to determine whether something equals establishment of a religion or cruel and unusual punishment might not stand in the face of rigid adherence to the Constitution’s text. In multiple ways, the Court would remain the least responsive to popular opinion.

Central to originalism is the doctrine of resisting societal evolution – suspect Justices appealing to populism to pretend their own personal beliefs are society’s – and if four originalists replace a flexible Justice and two liberals, this doctrine becomes inextricable from the judiciary. Remaining recalcitrant in the face of increasingly urgent calls for equality spells outrage. As long as beliefs that once passed for ‘traditional values’ continue to be seen as unacceptable rights violations by many, the Court’s defense of those values will keep prompting outrage from some media and political circles. Regardless of the Constitutional validity of these decisions, people will lose trust in those making them. Take Lawrence v. Texas, where Clarence Thomas dissented in favor of a Texas law banning sodomy: he felt the law “uncommonly silly,” but his reliance on Constitutional adherence prohibited him from voting to strike it down. How would such reasoning play to gay rights supporters? Though an extreme example, Lawrence demonstrates the rigidity of originalism in some cases, especially those where the ‘right’ being encroached upon is recognized not in writing but ostensibly by most Americans.

Were a Republican to win in 2016, the Court could become an outlier, too. Obama, as was recently chronicled in the New York Times, spent his term quietly tilting the balance of circuit courts in the liberal favor. These twelve courts hear way more cases – and write way more decisions – than the highest court, giving them serious intellectual sway. Moreover, cases making their way to the Supreme Court generally pass through circuit courts. How they wield that power in the face of conservative command could open a pronounced rift in the federal judiciary. Suppose the Court spends most of its time overturning landmark decisions made by circuit courts: it will be difficult for them to retain public trust. Or suppose the Court exercises more restraint with what it decides to hear. In cases of gay marriage, it could allow State bans on gay marriage to continue. Restraint, though, often comes hand in hand with overturning precedent to conservatives who perceive the Court as having lost its way – another practice which could annoy media or political opposition. Chief Justice John Roberts has already shown his susceptibility to public outcry by electing to uphold the Affordable Care Act in a byzantine legal switch. Could he form a new moderate coalition in an effort to save the Roberts Court’s reputation? If a Republican is elected, expect skepticism of the Court’s motives to rise. People are less likely to read long legal opinions: they will attend to the unseemly result and decide the Court lost integrity. Roberts may take measures to save his Court’s reputation.

A Democrat’s election would have an impact similar in magnitude but disparate in particular effect. Getting rid of Scalia robs the current conservative Justices of their intellectual forebear. Without his withering opinions that make originalism seem not just plausible but downright necessary, other approaches will move into the legal mainstream. No longer does incorporating “evolving standards of decency” into rights protected by substantive due process stay a flagrant violation of Constitutionalism. Making marriage equality part of the equal protection clause is just one of the liberal initiatives that will guarantee rights from violation by State governments. Expect State statutes complicating the abortion process to be struck down as an undue violation of the implicit right to privacy canonized in Roe v. Wade.

In the federal realm, the Controlled Substances Act will enjoy greater security from commerce clause challenges. The originalist attempt that began in the 1990s to ensure the commerce clause’s finitude will probably end. Congress will have few meaningful limits on its actions. A Democrat President, with Congressional support, would have immense freedom to push sweeping legislation without having to worry about constitutional challenges. Trendy pushes for stringent campaign finance laws will doubtless restart, and the Court could depart from its jurisprudential policy that the right to free speech extends to associated persons spending money via a corporation. Citizens United, which holds just this: good luck lasting long on a liberal court.

But still the most visible change that inevitably comes with four Democratic appointees lies in the notion of evolving rights. That they evolve is something originalists must not maintain, but liberals reliably do. That principle’s potential effect cannot be understated. The Court would practice practical Constitutionalism, interpreting the document’s text in the light of perceived societal change. What does “cruel and unusual punishment” mean? Not what it meant in 1789. What constitutes a violation of “equal protection under the laws?” Not what it did in 1868 – women, gays, and other marginal groups whose oppression was not an equal protection violation in the past may be afforded greater ‘rights’. And what fits into “life, liberty and property,” part of the clause that liberal Justices take to supply a right to privacy?

These questions will have a different answer if a Democrat is elected than if a Republican is. If a Republican wins, the replacement of Breyer and Ginsburg would walk back the progressivism. With a majority, conservative Justices may try to restore what they think are ‘true’ Constitutional principles that they believe are under persecution. But election of a Democrat would likely make the Roberts Court a predominantly liberal one bent on disabusing America from ‘backwards’ decisions. Either way, the upcoming ten years will be a major turning point for the Court.



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