Dred Scott was a sweeping pro-slavery ruling, rooted in the notion that people of African descent are “so far inferior that they had no rights which the white man was bound to respect.” Though America ratified three constitutional amendments to wipe away slavery, white supremacy, and the racist vision of society behind Dred Scott, the Supreme Court spent the next 30 years neutering these amendments. Then they spent the next 40 years rewriting one of them into a license for employers to exploit their workers. Along the way, the justices held that a woman could be cut up against her will and sterilized. And they endorsed laws making criticism of the nation’s wartime policies a crime.
I lay out much of this history in my new book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, where I also discuss the warning signs that modern-day justices are beginning to repeat the sins of their predecessors. Yet, despite these warning signs, it is easy to dismiss the Supreme Court’s past as, well, the past. The United States has done many terrible things in its history, from slavery to the Trail of Tears to Jim Crow. That doesn’t mean that we are likely to relegalize the sale of human beings any time soon.
What’s important to understand about the Supreme Court, however, is that it has almost always acted as a malign force in American history — and the brief period from the mid-1950s through the mid-1970s that liberals now look back upon with nostalgia was both an anomaly and the culmination of several historic accidents. Two other factors also create a significant risk that the Court’s future could look a great deal like the dark moments of its past. The first is that the Republican Party has largely rejected the cries for judicial restraint that dominated its rhetoric during the Nixon, Reagan, and both Bush administrations. And this shift towards conservative judicial activism is being cheered on by powerful elements within the legal profession.
The second factor is that the Court’s membership could change rapidly in just a few years. Justice Ruth Bader Ginsburg recently celebrated her 82nd birthday, only a few days after Justice Antonin Scalia celebrated his 79th. Justice Anthony Kennedy is 78 years-old, while Justice Stephen Breyer is 76. The next president, in other words, could replace nearly half of the Court’s members in a single presidential term — potentially filling the Court with justices eager to relive the Court’s excesses from nearly a century ago.
The Good Scalia
It’s not hard to remember a time when conservatives feared a Supreme Court run amok at least as much as liberals. President Ronald Reagan promised to appoint judges who embrace “judicial restraint.” President George W. Bush warned that judges who “give in to temptation and make law instead of interpreting” engage in “judicial lawlessness” that is a “threat to our democracy.” Chief Justice John Roberts told senators during his confirmation hearing that he would “prefer to be known as a modest judge.”
One of the most articulate spokespersons for this fear of a too-powerful judiciary used to be Justice Scalia. A judge’s power, Scalia warned in a 1998 book, can consist “of playing king — devising, out of the brilliance of one’s own mind, those laws that ought to govern mankind.” The power of judges to reason their way to a desired result, Scalia archly explained, “would be an unqualified good, were it not for a trend in government that has developed in recent centuries, called democracy.”
Indeed, as a younger man, Scalia built a judicial philosophy around the belief that judicial discretion must be constrained. In a 1989 lecture entitled “Originalism: The Lesser Evil,” Scalia argued that “the main danger in judicial interpretation of the Constitution — or, for that matter, in judicial interpretation of any law — is that the judges will mistake their own predilections for the law.” To combat this danger, Scalia embraced originalism — the theory that a legal text’s true meaning must be determined by examining how it would have been understood at the time of its enactment — because he believed that originalism “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.” The strongest case for Scalia’s avowed approach to the law has always been that it will enable judges to base their decisions on neutral principles separate from their own desires.
The Bad Scalia
In practice, however, Scalia’s proved quite incapable of living up to his own ideal of judicial decision-making untainted by personal preferences. In his 2005 opinion in Gonzales v. Raich, for example, Scalia offered an expansive interpretation of congressional power — an interpretation that was clearly expansive enough to permit the Affordable Care Act. Yet Scalia was one of four justices who voted to repeal this act in its entirety just seven years later. Similarly, Scalia co-authored a 2012 book which explains that “no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text” when interpreting a statute. Yet, at oral arguments in another case seeking to gut the Affordable Care Act, Scalia appeared determined to repeat this “interpretative fault” himself.
Scalia is, in many ways, a microcosm for the conservative movement as a whole, which has grown increasingly comfortable with aggressive judicial activism as the Supreme Court has moved to the right.
I argue in Injustices that the ethic of judicial restraint that dominated conservative judicial thinking in the late Twentieth Century was an anomaly. In the middle part of that century, the Supreme Court consistently moved the law in a more liberal direction for the first and only time in the Court’s history. Decisions like Roe v. Wade gave the American right a taste of what it is like to fear the judiciary, and they found that experience so painful that they spent decades devising reasons to constrain judicial power.
Now, however, Roe is more than 40 years old and the Supreme Court has grown more and more conservative with each passing decade. Conservatives and Republicans no longer have much to fear from the judiciary. Indeed, outside the area of gay rights, the worst conservatives can expect from the Roberts Court is a decision which maintains the status quo instead of moving the law to the right. This means that conservatives and Republicans no longer have much motivation to seek out ways to prevent judges from reading their own preferences into the law.
“I’m A Judicial Activist”
Indeed, asking judges to second-guess decisions made by the elected branches of government may now be the GOP’s first line of defense against laws and executive actions they disapprove of — especially when those actions have President Obama’s name on them. More than two dozen Republican officials signed onto NFIB v. Sebelius, the first Supreme Court case seeking to repeal Obamacare. Senate Majority Leader Mitch McConnell (R-KY) described King v. Burwell, a more recent suit seeking to gut Obamacare, as an “opportunity presented to us by the Supreme Court” to get “a major do-over of the whole thing” on health reform. When President Obama announced a new immigration policy that most Republicans disapprove of, they quickly found a Republican judge with a history of opinions calling for harsher treatment of immigrants who was willing to block the new policy. Just about the only thing President Obama’s managed to accomplish without being sued for it is pardoning a Thanksgiving turkey.
Among the GOP’s likely presidential candidates, no one has more wholeheartedly embraced this shift towards legislation-by-judiciary than Sen. Rand Paul (R-KY). “I’m a judicial activist,” Paul proudly announced at at event sponsored by the conservative Heritage Foundation last January, before launching into a defense of the Supreme Court’s 1905 decision in Lochner v. New York.
Lochner, which struck down a New York law prohibiting bakeries from overworking their bakers, has historically been held up by liberals and conservatives alike as symbolic of an entire era of judicial overreach. Indeed, the period in the late nineteenth and early twentieth century when the Court barred minimum wages laws, stripped workers of their right to organize and condemned countless young Americans to spend their childhoods working in coal mines, cotton mills and other factories is commonly referred to as the “Lochner Era.”
Paul has been as explicit as he can possibly be that he wants to bring back this era, and there should be little doubt that he would appoint justices who share the same values if given the chance. Meanwhile, though the GOP’s other candidates have not spoken as openly about a desire to restore the kind of judicial activism that defined the Lochner Era, they are likely to seek counsel on judicial nominations from a segment of the bar that shared values very similar to Paul’s.
The Incubator
The conservative Federalist Society is arguably the most powerful legal organization in the country. The keynote at its annual black tie dinner rotates among Justices Scalia, Clarence Thomas and Samuel Alito. Senators and other members of Congress typically fill up much of the audience at this annual event. Federalist Society Executive Vice President Leonard Leo shaped much of the second President Bush’s judicial nominations strategy, and many of Bush’s most high-profile appointments to the bench were themselves members of the Society.
More than just a group that convenes conservative attorneys, the Federalist Society is an incubator for lawsuits such as NFIB and King, and its meetings offer a window into the concerns that animate the kinds of lawyers who would be candidates for a judicial appointment in a Republican administration.
Once upon a time, when calls for judicial restraint were ascendant on the right, the Federalist Society was also an incubator for this more restrained vision. In 2006, for example, federal-judge-turned-cabinet-secretary Michael Chertoff claimed that “in large part because of the work that the Society and others have done, the claim for judicial modesty is sufficiently well-established that everybody understands, even the critics of that claim, that they have to take it seriously and they have to address it.” President Bush made his comparison between judicial activism and “judicial lawlessness” at a Federalist Society conference one year later.
Last fall’s convening of the Federalist Society’s annual lawyer’s convention, by contrast, featured one panel questioning the wisdom of anti-discrimination laws — panelist Gail Heriot, a professor at University of San Diego School of Law, claimed that America needs to “take a hard look at some of the ways in which” anti-discrimination laws “have backfired, doing no good or more harm than good” — and another panel questioning the wisdom of the minimum wage.
These concerns are likely to influence — and may even drive the decision-making of — the next Republican who has the opportunity to name federal judges. Should that president wish to return to an era where the minimum wage and bans on private discrimination were considered unconstitutional, they will already have at least one powerful ally in this fight. Justice Clarence Thomas has, in multiple opinions, embraced a narrow reading of the federal government’s constitutional powers which would forbid child labor laws, minimum wage laws, and the ban on whites-only lunch counters.
On the day that the next president takes office, Justice Breyer will be 78 years-old — and he will only be the fourth oldest member of the Court if no other justice departs before that date. Should these four justices be replaced with judges who think like Justice Thomas, that will mean that the Court will have enough votes to repeal much of the twentieth century.
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