Yesterday I described how the sixteen appointments to the Supreme Court made since Chief Justice Earl Warren retired in 1968 have made the court increasingly more conservative over the last 48 years. Younger voters have never lived in a time when the Supreme Court was a champion for progressive issues, and therefore may not fully grasp the importance of how significant the difference would be between Clinton versus Trump nominees to the Supreme Court.
Though Earl Warren had been a three-time Republican Governor of California and was nominated to the Supreme Court by Republican President Dwight Eisenhower, he ended up being a far more liberal justice that anyone anticipated. On the Martin-Quinn scale comparing the ideologies of Supreme Court justices, Warren ranks as the thirteenth most liberal of the 45 justices rated since the 1930s.
During the years Warren served, from 1953 to 1968, it was a time of great social unrest in the country, and the Supreme Court did not shy away from the issues of the day, whether it be racial discrimination, free speech, criminal procedure, or voting rights. Contrast that with just the last ten years of the Roberts Court.
This Is What a Liberal Court Looks Like
The Warren Court suggested that heightened judicial scrutiny may be appropriate in three types of circumstances, as enumerated in United States v. Carolene Products:
- When a law was challenged under a specifically enumerated constitutional right (such as free speech);
- When a challenged law made it more difficult to achieve change through normal political processes; and
- Where a law impinged on the rights of “discrete and insular minorities” – that is, minorities historically discriminated against like ethnic minorities, women, people of unpopular religions, LGBTs, and the like.
With heightened scrutiny, the government has a much higher burden of proof to show that their laws are necessarily to achieve a compelling government objective. And in issue after issue, the Warren Court struck down federal and state laws and procedures that infringed on the rights of individuals.
With issues of racial segregation, the Warren Court found that segregated schools and universities were unconstitutional (Brown v. Board of Education, Bolling v. Sharpe, Lucy v. Adams), that closing public schools and issuing vouchers for private schools as a back-door way to segregate was unconstitutional (Griffin v. County School Board), and that states were forced to comply with the Court’s decisions and must enforce them even when they disagreed (Cooper v. Aaron). It also struck down laws banning interracial marriage (Loving v. Virginia).
It struck down voting and redistricting laws meant to disenfranchise voters, particularly minorities, and established that voting districts must be roughly proportional in population size (Baker v. Carr, Reynolds v. Sims, Wesberry v. Sanders), establishing for the first time the “one man, one vote” doctrine.
It established basic standards of criminal procedure, including finding that states must provide legal counsel for those who cannot afford it (Gideon v. Wainwright) and that people arrested have a right to legal counsel during their police interrogation (Escobedo v. Illinois), and insisted that people arrested be informed of their rights (Miranda v. Arizona). It prohibited prosecutors from withholding evidence from defendants (Brady v. Maryland) and extended other “search and seizure” privacy protections (Mapp v. Ohio, Katz v. United States, Terry v. Ohio).
It protected free speech by limiting hostile states’ ability to sue the press for defamation and libel (New York Times Co. v. Sullivan), a tactic used at the time by southern states to sue the “liberal media” for covering racist laws and policies. It struck down laws against overly vague “inflammatory” and “reactionary” speech (Brandenburg v. Ohio, Yates v. United States), defined and limited bans on obscenity (Roth v. United States, Alberts v. California, Jacobellis v. Ohio, Memoirs v. Massachusetts), and found that students do have at least some First Amendment free speech rights (Tinker v. Des Moines Independent School District).
It prohibited public schools from composing an official school prayer (Engel v. Vitale) and conducting school-sponsored Bible readings (Abington School District v. Schempp), while also ruling that when laws infringe on an individual’s exercise of religion, the government must have a compelling interest and that the law must be narrowly tailored (Sherbert v. Verner). (Years later, the court modified the decision to rule that neutral laws that are applied to all citizens evenly need not violate Sherbert.)
It established the right to privacy and extended that right to the use of contraception between married couples (Griswold v. Connecticut), which would later become the basis for extending the right of privacy for contraceptive use between unmarried couples, and many years later, overturning laws banning other private, consensual sexual behavior such as sodomy laws. It was also a significant basis for the right to abortion found in Roe v. Wade.
It extended the Eighth Amendment’s prohibitions against cruel and unusual punishment by finding that simply being an addict was not in and of itself a crime (Robinson v. California) and that a natural born citizen’s citizenship could not be revoked as a punishment for a crime (Trop v. Dulles).
All of these rights that we take for granted and see on every episode of “Law & Order” – being granted an attorney if we’re poor, being read our rights if we’re arrested, one man one vote so that voting districts are of proportional sizes, and so many more – didn’t even exist until the Supreme Court made them so in the 1950s and 60s.
That is what a liberal court looks like. It’s a court that sees itself as the last protection for the unprotected. When I was taking grammar and high school history and civics classes in the 1970s and early 80s, that was my image of the Supreme Court: the last bastion of hope for the hopeless, the desperate, the disenfranchised. To me, I really did see Supreme Court Justices as superheroes. Politicians were fallible. But the justices on the Supreme Court seemed to be constant and consistent champions of the constitutional rights of the downtrodden. Always, all the time. At least, that’s what I thought.
But that’s not the mental image of the Supreme Court that kids who grew up in the 80s have.
Contrast Those Advances With That a Conservative Court
In contrast, a conservative court is far more likely to side with corporate and moneyed interests over that of the powerless. A court like Chief Justice John Roberts’ court of the last ten years.
A court that found, after already preparing the soil by weakening restrictions on “issue ads” attacking politicians that just happen to run right before an election (FEC v. Wisconsin Right to Life), that corporations are people and that money is speech, and therefore that unlimited corporate spending to influence partisan elections through anonymous political action committees is protected as free speech (Citizens United), and then struck down states’ efforts to support candidates who chose to abide by voluntary campaign limits (Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett).
A court that ruled that the statute of limitations could run out over suing over employment discrimination before the employee even knew they were being discriminated against (Ledbetter v. Goodyear Tire & Rubber Co.) and then made it all but impossible for class action discrimination cases against large corporations by creating prohibitively impossible standards for establishing discriminated classes (Wal-Mart Stores, Inc. v. Dukes).
A court that sided with the religious rights of business owners over those of their employees when it came to the employee’s health insurance covering contraception (Burwell v. Hobby Lobby).
A court that chipped away at the rights of defendants and rewarded deliberate prosecutorial misconduct by eroding search and seizure restrictions (Hudson v. Michigan), including allowing strip searches for minor traffic tickets (Florence v. Board of Chosen Freeholders). A court that said defendants don’t have a constitutional right to DNA evidence nor the right to conduct their own DNA testing on evidence against them (District Attorney’s Office for Third Judicial District v. Osborne), and overturned a jury’s award for damages to a defendant who spent nearly two decades in jail for murder, ruling the prosecution wasn’t liable even though the defendant showed that the prosecution hid DNA evidence that proved the defendant didn’t commit the crime (Connick v. Thompson).
A court that overturned two hundred years of precedent to completely disregard the “well-regulated militia” clause of the Second Amendment in order to discover a private right of gun ownership (District of Columbia v. Heller, McDonald v. Chicago) that somehow includes semi-automatic rifles but doesn’t include missiles or tanks.
A court that sided with corporate interests against consumers in overturning a California law attempting to protect consumers against contracts that force binding arbitration, claiming to find that federal law superseded the state law even though the laws were not in conflict and the federal law did not explicitly preempt state laws (AT&T Mobility v. Concepcion).
A court that continues to erode more liberal precedents by weakening abortion rights (Gonzales v. Carhart), racial discrimination (Parents Involved in Community Schools v. Seattle School District No. 1, Ricci v. DeStefano), students’ free speech at off-campus events (Morse v. Frederick), union organizing (Knox v. Service Employees Int’l Union), government regulations to protect the environment (Michigan v. EPA), and voter protections (Shelby County v. Holder, Crawford v. Marion County Election Board).
That’s what a conservative court looks like. And those examples are just from the last ten years, not the last fifty.
And every single one of these were made 5-4, and likely would have been different if it were President Al Gore replacing Chief Justice Rehnquist after he died instead of President George W. Bush.
That’s What’s At Stake
Right now the court is evenly divided, 4-4, with Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, and Anthony Kennedy on the conservative side and with Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan on the liberal side.
Antonin Scalia’s death gave President Obama the first opportunity any Democratic President has had in 48 years to flip a conservative seat liberal – and, in the process, to flip a 5-4 conservative court to become a 5-4 liberal court. With the U.S. Senate blocking Merrick Garland’s nomination, the future of the court comes down to this election.
If Trump wins, the Senate will scuttle Garland’s nomination and Trump will choose a conservative nominee who will to continue to lock in a 5-4 conservative Supreme Court. If Clinton wins, either Garland will be hastily confirmed or Clinton will have the opportunity to nominate someone herself – someone likely even younger and even more liberal. Either way, a Clinton victory gives us a 5-4 liberal Supreme Court for the first time since 1968.
Tomorrow: in part three of this series, I’ll look at how the current members of the court compare politically to each other and their predecessors in preparation for the fourth and final article in this series looking at how the next four years may well shape the next twenty years of the Supreme Court.
Further Reading
Aron, Nan and Kyle C. Barry, “The Case Against the Roberts Court,” The Nation, September 23, 2015.
Chiusano, Scott, “Landmark Decisions During John Roberts’ Decade As Chief Justice,” New York Daily News, September 29, 2015.
Lemieux, Scott, “The Five Worst Roberts Court Rulings,” The American Prospect,” August 1, 2016.
Lemieux, Scott, “Valiantly Protecting Corporations From Consumers,” The American Prospect, April 29, 2011.
Martin-Quinn scores, accessed August 4, 2016.
“On the Issues: Significant Decisions of the Roberts Court,” The Washington Post, accessed August 4, 2016.
Pollack, Harold, “Death on the Installment Plan,” Politico, May 7, 2014.
Roeder, Oliver, “Supreme Court Justices Get More Liberal As They Get Older,” FiveThirtyEight, October 5, 2015.
Toobin, Jeffrey, “Justice O’Connor Regrets,” The New Yorker, May 6, 2013.