The Washington Post has just published an excerpt form Justice John Paul Stevens' new book which deals with issues of constitutional interpretation. The section that they published is focused on the second amendment. Stevens' position is that the court's current majority is misinterpreting the constitution by expanding the rights of gun owners. I am personally in sympathy with Stevens' views on gun control. However, in reading his review of the changing history of the interpretation of this section of the constitution, I was struck once again by just how much the courts are political bodies subject to the changing tides of political fortunes. The notion that the judges and justices are ever really separated from the political process that put them on the bench is simply a myth.
The political structure of government in the US is a complex patchwork of local, state and national institutions. Constitutions are intended to provide a certain amount of legal bedrock that anchors the system, but in practice they are subject to judicial interpretation and have a mechanism for amendment. They are not fixed and forever unchanging.
Over the past century the political composition of SCOTUS has taken broad swings from being politically conservative to politically liberal and then back to a conservative majority with a fairly moderate minority. This pattern of change can be tied very directly to the occupants of the White House and the makeup of the Senate. The justices on the court do not run for election and are appointed for life. They leave the court by either dying or retiring. This limits the ability of any particular president to appoint new members to the court, and the requirement for senate ratification is a further constraint on appointments.
When FDR came to office in 1933 at the depth of the great depression he had a congressional majority, but he faced a SCOTUS made up of conservative justices that were the legacy of 12 years of very conservative Republicans. The new deal began to enact experimental measures in an effort to bring some relief to the nation's economic plight only to have SCOTUS declare some of the key measures unconstitutional. This confrontation set FDR off on what turned out to be probably his greatest political disaster. He was unwilling to wait for the court's composition to change over the course of time and he proposed a bill in congress that would allow him to pack the court with his appointees. It would have allowed him to make immediate new appointments based on the ages of the existing justices. The bill ultimately failed.
The Democrats maintained control of the presidency and congress for 20 years. When Eisenhower took office he faced a federal judiciary with a preponderance of liberal Democrats. His first appointment of Earl Warren as chief justice backfired and he wound up with perhaps the most famous liberal in the history of the court. He added four other justices who were generally moderates. The overall political orientation of the court didn't change form the new deal years.
Nixon was the first president since Hoover to begin putting conservatives on the court. Reagan added 3 new justices, but for all of his conservative rhetoric only Scalia turned out to be a hard line conservative. Bush I picked up another hardliner with Clarence Thomas. Clinton only got two appointments. Bush II managed to come up with two strong conservatives. Obama's two appointments could be rated one fairly liberal and one moderate.
The point of this historical review is to show how the political composition of this supposedly detached institution is subject to change. There was one brief episode when all pretense of impartiality was stripped away, Bush v Gore.
For people like me who were born during the new deal period or slightly after, there was a basic sense of the federal judiciary as an institution that was oriented to protecting the rights of the people. I am sure that legal scholars tracing detailed history of trends would find much more complex patterns since most of the cases in the federal courts are dealing with technical legal problems rather than broad constitutional ideological positions. However, it is those headline grabbing cases that get public attention and there is a prevailing impression that there has been a steady shift to the right.
I think that the best known instance of a fundamental shift in judicial interpretation is the application of the equal protection clause of the 14th amendment to the issue of racial segregation. The amendment was ratified just after the civil war, but it wasn't until 1954 that it actually began to change the way things were done. In the case of Plessy v. Ferguson in 1896 SCOTUS held that separate but equal facilities met the requirements of the constitution. In Brown v Board the Warren court reversed that position. Stevens' reflections on the second amendment demonstrate a shift from a narrow interpretation that limited the impact of the amendment on the power of states to regulate gun ownership to a very different position that moves toward constructing guns as some sort of fundamental human right. We are seeing applications of the first amendment that are establishing a right of political speech for corporate persons.
The difficulties of amending the constitution make it unlikely that an amendment will get ratified unless there is a super majority of public support for change. On issues where public opinion is fairly evenly divided it is through the political process that ideological positions gain leverage.
We are generally accustomed to think in terms of constitutional interpretations as being fairly fixed. In discussions about red state legislative efforts to restrict things like the right to reproductive choice people assert with some confidence, "That will never hold up in court.". The reality is that Roe v Wade is on increasingly shaky ground. The constitution has no explicit reference to abortion or contraception. This precedent was essentially court created as an application of broader constitutional principles to an issue of contemporary life. The people who favor it think that was a constructive approach. Those who oppose it do not. Conservatives on SCOTUS have nibbled around the edge of this issue and placed restrictions on it. However, there is nothing that preserves it as inviolate. All it would take is five votes to entirely reverse the whole thing.
Stevens' assertion that the interpretation of the second amendment is wrong is partially based on a view as to what the intent of the framers of the constitution was. This is a more or less strict construction approach. That claim is one more often asserted by conservatives. His other complaint is that the present majority takes a different position than what was prevailing when he first came to the court. That simply reflects the lack of permanency.
The liberal era that was initiated by the new deal essentially lasted about 40 years. It began to erode in the 1970s and the country has taken a steady drift to the right ever since. The Democrats have controlled the presidency for 17 of the last 45 years. At best those presidencies have slowed the trend rather than reversed it. Obama has about 2 1/2 more years in the White House. It seem unlikely that he will have an opportunity to change the majority on the court. Replacing Ginsberg is the most probable appointment and that won't change the balance.
This little story has two morals.
1) Never take judicial interpretations for granted.
2) Elect more and better Democrats