If President Obama — or his successor — replaces the
late Justice Antonin Scalia with a strong liberal, the Supreme Court’s
balance will swing dramatically to the left in the coming years. It
might well be the biggest ideological swing in recent memory.
Indeed, American politics has not seen a moment like
this one since 1987. That was when the retirement of moderate Justice
Lewis Powell, who was the pivotal vote on many big issues, left the
court with four strong conservatives and four strong liberals. (The
latter included Sandra Day O’Connor, whose votes through 1987 had been
quite conservative.)
It was clear then that if the Democratic-majority
Senate confirmed President Ronald Reagan’s first nominee, the very
conservative Judge Robert Bork — as at first seemed likely — the court
would swing hard to the right.
Bork himself later told me and others that he would have been the fifth vote to overrule Roe v. Wadeand
a lot more liberal precedents. But Democratic senators and liberal
interest groups went all out to stop him and succeeded by a 58-42 vote. The justices of the Supreme Court in 2010.
Seated, from left: Clarence Thomas, Antonin Scalia, Chief Justice John
G. Roberts, Anthony M. Kennedy, and Ruth Bader Ginsburg. Standing, from
left: Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., and Elena
Kagan. (Photo: Pablo Martinez Monsivais/AP)
Now the court has four strong liberals, three strong
conservatives and one less consistent conservative, Justice Anthony
Kennedy. He sometimes joins the liberal bloc on issues including
abortion, gay rights and the death penalty. Kennedy also happens to be
the Reagan nominee whom the Senate confirmed after Bork’s defeat.
If and when a liberal replaces Scalia, therefore,
the court will likely overrule or cut back sharply major conservative
precedents including those limiting abortion rights, those restricting
race-based affirmative action (in theory if not so much in practice) and
those giving strong First Amendment protection to unlimited spending in
election campaigns.
Below is a quick rundown of what the court
might do — not necessarily in the next year or two, but perhaps within
five or so years — if a fifth liberal tips the balance. Race. A liberal replacement for
Scalia would make a dramatic difference on racial issues, on which the
court has long been deeply divided by 5-4, with conservatives in the
majority, usually including Kennedy.
These issues include racial affirmative
action preferences in state university admissions, government hiring and
employment, and other walks of life; Justice Department supervision of
state and local voting rights laws; and efforts to make it easier for
poor and black people to vote.
Indeed, a liberal majority would almost
certainly overrule the court’s application of “strict scrutiny” to
“benign” racial preferences since 1978 and disregard its 2003 suggestion
that racial preferences in state university admissions must end within
25 years, by 2028.
The effect could be to ensure that racial
preferences — a major priority of Democratic interest groups — will
continue well past 2050 and perhaps far into the next century.
Eric Holder, Obama’s first attorney general,
spoke for many liberals when he asserted in 2012 that the previous 40
years of racial preference programs had been “a relatively small period
of time in which African-Americans and other people of color have truly
had the benefits to which they are entitled.”
Holder continued: “I can’t actually imagine a
time in which the need for diversity” — engineered, he implied, by
racial preferences — “will ever cease.”
Kennedy has sought (without much impact) to
limit racial preferences in state college admissions and other
government programs, while stopping short of joining Scalia and other
conservatives in seeking to outlaw preferences. A liberal replacement
for Scalia would cement a solid 5-4 majority for broad approval of
racial preferences.
Aggressive federal judicial efforts to force
more spending on inner-city schools, which the court blocked in a big
1973 decision, might also be revived. On the other hand, liberals might
be restrained by the fact that many urban school districts already spend
more per student than ever before, and more than many prosperous
suburban schools. Campaign finance regulation. A liberal replacement for Scalia would probably work a sea change on campaign finance regulation. The 5-4 Citizens Uniteddecision
in 2010, a target of liberal disdain for upholding corporations’ First
Amendment rights to spend unlimited amounts on campaigns, would almost
surely be overruled.
The court would also likely sweep away other
precedents upholding unlimited “independent” campaign spending. This
would gratify Democrats and to a large extent protect incumbent elected
officials.
But it would be seen by many Republicans as
designed to solidify the Democratic advantage that, they say, comes for
free from campaign coverage and commentary the unregulated,
predominantly liberal mainstream news media. Congress has exempted media
corporations from restrictions on spending in support of candidates. A rally in Washington in 2015 calling for
an end to corporate money in politics and marking the fifth anniversary
of the Supreme Court’s Citizens United decision. (Photo: Drew
Angerer/Getty Images) Other free speech issues. A liberal
replacement for Scalia might well foreshadow Supreme Court support for
speech codes and other limitations on controversial speech — seen by
some as sexual or racial harassment — that the Obama Education
Department and many universities have imposed on students.
The court has not so far been active in this
area. But the issue is bound to come before it in the next few years.
More generally, while liberals were more friendly to free speech than
conservatives for most of the 20th century, the reverse is now true. Abortion. Constitutional abortion
rights have long rested on a precarious 5-4 majority, with Kennedy
joining the four liberals on some (not all) key votes. A liberal
replacement for Scalia would guarantee almost unlimited abortion rights,
probably far into the future. Freedom of religion. A liberal
replacement for Scalia would probably be the fifth vote to overrule the
2014 Hobby Lobby decision and require religious employers and other
groups to provide health insurance including free contraceptives and
take other actions that they say violates their freedom of religion. Environment. A liberal replacement for Scalia might well reverse decisions including the court’s 5-4 ruling last weektemporarily
blocking the Obama administration’s effort to combat global warming by
regulating emissions from coal-fired power plants. Federal power. A liberal replacement
for Scalia would cement a majority to sweep away virtually all limits
on federal regulation of the economy, many of which have been dismantled
already in the Obamacare decisions, with John Roberts, the usually
conservative chief justice, writing for the otherwise-liberal majority. Gun rights. A liberal replacement
for Scalia might be the fifth vote to cut back on or overrule the 2008
Scalia majority opinion in District of Columbia v. Heller and subsequent Supreme Court decisions recognizing a constitutional right to keep and bear arms. Death penalty. A liberal replacement
for Scalia would insure invalidation of more death penalty laws,
although not necessarily complete abolition of the penalty. The court
has already struck down various death penalty provisions while narrowly
upholding others, such as a 2015 decision allowing use of execution
drugs that were alleged to cause excruciating pain. That decision, among
others, could be overruled or pared back to its specific facts. National security. A liberal
replacement for Scalia might increase the already unprecedented judicial
intervention into national security matters that the court pioneered in
three liberal decisions (joined by Kennedy) involving the George W.
Bush administration’s detention of suspected terrorists in Guantanamo.
For most of our history, national security
issues were treated by the court as almost the exclusive province of the
president and Congress. That changed under Bush. If a liberal replaces
Scalia, the justices might well become bolder in second-guessing
presidents — Republicans especially. Importing foreign law into constitutional interpretation.
A liberal replacement for Scalia would open wider the doors to using
foreign law to interpret (some say “amend”) the meaning of the U.S.
Constitution. This has been a trend favored by the liberals (and
Kennedy). Scalia has been the most vocal opponent. Would respect for precedent restrain a liberal majority?
Not much, or not for long, probably. While nominees habitually and
sincerely vow to respect precedents during their confirmation hearings,
the vows have been a bit misleading. Liberal and conservative justices
alike have long been ready severely (if respectfully) to limit or to
overrule constitutional precedents they don’t like, while seeking
to avoid outright overruling until the precedent has been on the books
for a few years.
This is consistent with the views of many
legal scholars that because constitutional precedents cannot normally be
overruled by Congress, and should not be treated as though written in
stone, they should be subject to reconsideration by the court.
To be sure, the justices have traditionally been very reluctant to overrule the court’s statutory interpretations,
on the theory that Congress can overrule any statutory precedents it
does not like and that therefore the court should leave them alone for
the sake of stability and predictability in the law. Constitutional
precedents are different. SLIDESHOW – Justice Antonin Scalia – A look back >>>
Furthermore, both liberals and conservatives
have proved adept, when they have the votes, at the technique sometimes
called “stealth overruling.” Precedents once thought to sweep broadly
are read so narrowly that the dominant thrust of the law becomes the
exact opposite of what it was before. Might there be a compromise on a moderate nominee?
Unlikely, in these polarized times, unless one side holds out an olive
branch to the other early in the process. Behind the scenes, Republicans
are well aware that both of President Bill Clinton’s appointees — Ruth
Bader Ginsburg and Stephen Breyer — seemed to be moderate liberals when
nominated but have ended up solidifying the liberal bloc.
Only that disappearing breed — the moderate
senator willing to work across the aisle in the larger national
interest, or a president more interested in actually getting someone
onto the court than in getting his ideal candidate — could begin to
broker a deal.
In the absence of a quietly brokered deal
involving sacrifice by both sides, anyone whose views on any big issue
are known could probably not get past both the White House and the
Senate, this year or in the foreseeable future.And anyone whose views are totally unknown would be seen by both sides as too big a risk. Stuart Taylor Jr. covered legal affairs
for the New York Times, American Lawyer, Newsweek and National Journal
and is co-author of the book “Mismatch: How Affirmative Action Hurts
Students It’s Intended to Help, and Why Universities Won’t Admit It.” Cover tile photo: Manuel Balce Ceneta/AP end quote from:
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