The last week of the Supreme Court’s last full term of the Obama era was a microcosm of his administration’s relationship with the Roberts Court. The decisions handed down certainly did not represent an unmitigated victory. In a one-sentence opinion, the Supreme Court left in place a lower court ruling that the president’s DAPA immigration program—which aimed to defer the deportation of millions of undocumented immigrants—was illegal, meaning that it will almost certainly not be implemented before President Obama leaves office. Still, the news from what is now an eight-member Court was good. A surprising majority opinion upheld the University of Texas’s affirmative action program, and a somewhat less surprising majority opinion struck down Texas’s draconian abortion statute. Given that the Court lacks a majority of Democratic nominees, the week went about as well as Obama could have expected.
Looking at the Supreme Court’s major decisions during the Obama administration as a whole, the story is similar. The last time a Democratic president successfully passed an ambitious progressive agenda with a Republican-controlled Supreme Court, the result was a constitutional crisis. The Court of the FDR era struck down several major New Deal statutes, leading to a proposed court-packing plan and the Court’s swing vote abruptly changing his mind about those decisions (this was then followed by a wave of Democratic nominees that quickly solidified the New Deal constitutional order). Unlike FDR, Obama was not able to change the median vote of the Court. While both of the justices he replaced were Republican nominees, John Paul Stevens and David Souter were both stalwart liberal votes by the time they retired. And yet, despite some major defeats, the Roberts Court left Obama’s domestic agenda mostly intact, while delivering the Democratic coalition some major victories it would not have been able to win any other way, most notably on abortion and LGBT rights.
One interpretation of the Court’s behavior is that it is isolated from the pressures that have caused the other institutions of American politics to become cripplingly polarized. This interpretation, however, is probably wrong. The relative moderation of the Roberts Court is likely the last gasp of the previous partisan order rather than a signal that it will continue. Depending on who wins the election in November, the Court can be expected to take a sharp turn to the left or to the right.
We should be careful about evaluating the ideological trajectory of the Court based on a few select cases from a given year. “It’s always trite to judge the direction of the Court from a single term,” says Barry Friedman, a professor of law at NYU and the author of a fine recent book about the Court’s tendency to come into line with public opinion, “and that’s especially true of this term.” The sudden death of Antonin Scalia prevented some major blows against the Democratic coalition. The most crucial example is Friedrichs v. California Teachers Association, in which the challengers argued that union “agency shops” were a violation of the First Amendment. Had Scalia lived, he was a certain fifth vote to hobble public-sector unions, but instead the Court tied 4-4, restoring a lower court holding rejecting the First Amendment challenge. “If Freidrichs had come out the other way,” Friedman points out, “we would remember this term very differently.”
And there have been plenty of other major conservative judicial victories during the Obama era, most notably the gutting of the most important civil rights statute since Reconstruction in the 2013 decision Shelby County v. Holder. The Court fulfilled a cherished objective of many Republicans—including Chief Justice John Roberts—by declaring unconstitutional the Voting Rights Act’s requirement that jurisdictions with a history of voter discrimination clear changes to their election laws with the Department of Justice. Even worse than the result of the case was the shoddiness of Roberts’s opinion, which notably failed to advance any remotely coherent justification to undermine Congress’s unambiguous authority to enforce the Fifteenth Amendment’s prohibition on race discrimination in voting. Since then, many Republican-controlled states have wasted little time passing discriminatory voting restrictions, undercutting the Court’s conclusion that the strong enforcement of the Voting Rights Act was no longer necessary.
While the Roberts Court has permitted the states to engage in a wide array of vote suppression tactics on the one hand, it has prevented state and federal governments from passing campaign finance restrictions on the other. And in lower-profile cases, the Court has consistently ruled against the interests of consumers and the rights of employees when interpreting federal law.
However, it can’t be denied that liberals had their fair share of victories at the Court over the past eight years. Most of Obama’s key legislative achievements—the 2009 stimulus bill, Dodd-Frank’s financial regulatory reforms, the repeal of “Don’t Ask, Don’t Tell,” and the partial expiration of the Bush tax cuts—did not face serious attack in the federal courts. But perhaps the most consequential decision so far of the Roberts Court involved the one law that did: the Affordable Care Act. In addition to its immense potential impact on American politics and the lives of tens of millions of people, the 2012 case NFIB v. Sebelius was striking because it represented the very first time that Roberts joined with the Court’s four Democratic nominees to create a 5-4 majority. Reports that Roberts switched his vote to uphold the law, after initially voting to strike down the statute at the initial conference vote, lends credence to suspicions that Robert’s unprecedented swing vote was an attempt to preserve the institutional prestige of the Court.
Then, in 2015, he did it again. This time joined by Anthony Kennedy, Roberts rejected the theory, cooked up by a few fanatical opponents of the ACA, that Congress had established a federal backstop in case state governments did not set up health care exchanges, but intended for it to fail by not making the necessary tax credits available. If the challenge had prevailed, a majority of the state exchanges would have been sent into death spirals and millions of people would have lost access to health insurance. Roberts’s surprisingly forceful rejection of the argument made it clear that he was declaring an end to the legal war on Obamacare.
The chief justice’s defense of Obamacare marked a high point in the Court’s deference to the legislature and common sense. It should be noted, however, that the legal challenges to the ACA were not entirely unsuccessful. Combined with the actions of Republian statehouses, the Court’s inept and illogical re-writing of the Medicaid expansion in Sebelius has denied health care coverage to millions of poor people. We also shouldn’t forget the Court’s 2014 decision to strike down the mandate requiring employers to provide contraceptive coverage as part of taxpayer-subsidized health plans.
Still, the fact that the Court mostly upheld the Affordable Care Act, combined with major victories on gay and lesbian rights, abortion, and affirmative action, suggest a Court that is politically unpredictable and more capable of compromise than the political branches. But it would be unwise to assume that past results will be repeated in the future.
With the admittedly crucial exception of Sebelius, the liberal victories of the Roberts Court were due to one man: Anthony Kennedy. This isn’t surprising. Since early in the Nixon administration, the median vote on the Court on the most politically salient issues has been a Republican, but a moderate, country-club Republican: Potter Stewart, Lewis Powell, Sandra Day O’Connor, and now Kennedy.
The issue going forward is that this kind of Republican is rapidly going extinct. (It is no coincidence that Kennedy was Ronald Reagan’s third choice, after a disastrous attempt to nominate arch-conservative jurist Robert Bork.) As Donald Trump’s list of prospective judges indicates, future Republican nominees are going to be in the mold of Samuel Alito and Roberts, not O’Connor and Kennedy. This will be true for two reasons: A Republican president will face intense pressure from the Republican conference not to pick “another Souter,” and a Republican president may have a hard time finding a fairly young, moderate Republican judge to nominate even if he wanted one. The political scientist Amanda Hollis-Brusky, author of a definitive recent study of the conservative legal group the Federalist Society, says the group “performs the dual function of vetting and credentialing judges, as well as acting as a vocal audience pressuring Republican presidents to pick reliable conservatives.”
As the University of Maryland law professor Mark Graber explained in a recent paper, the Supreme Court has historically been a centrist institution. But the tendency of the Court to represent, for better or worse, the political center was not inevitable. It stemmed from the fact that elites—from whose ranks Supreme Court justices are generally chosen—tend to have less polarized views than ordinary members of the party.
In 2016, however, exactly the opposite is true: Party elites are much farther apart than voters are. Donald Trump’s rise is, in part, a reflection of the increasing gap between the GOP’s elites and its voters, exemplified by his blasé attitude toward conservative orthodoxy.
A decade from now, the Supreme Court will almost certainly not be controlled by either a moderate Republican like Anthony Kennedy or a heterodox liberal like Byron White, a JFK nominee who dissented in Miranda v. Arizona (which established Miranda rights) and Roe v. Wade (which established the right to an abortion). The median vote on the Court will almost certainly be a conservative in the mold of Alito or Roberts, or a liberal in the mold of Ruth Bader Ginsburg. I don’t mean to suggest that all members of Team Democrat are equal. For example, if she is elected, Hillary Clinton should not re-nominate Merrick Garland, assuming he does not get a hearing before Obama leaves office. On civil liberties in particular, a justice like Sonia Sotomayor should be the model. But still, in today’s political context almost any Democratic nominee will be a reliable vote on most politically salient cases.
It’s worth noting that this polarization is not symmetrical. Just as the Republican Party has moved to the right more quickly than the Democratic Party has moved to the left, Alito is further to the right than Ginsburg is to the left. And, in addition, because judicial review is better suited to stopping the state from doing things than requiring it to do others, in general it’s a more potent tool for conservatives who believe in limited government (with abortion being an obvious exception).
As a result, a Court controlled by five contemporary conservatives would strike very substantial blows at the power of the federal government, weakening its regulatory power as well as its ability to enforce civil and voting rights. A liberal-controlled Court is unlikely to accomplish anything that transformative. For example, if a future Court took up Justice Stephen Breyer’s recent invitation to rule the death penalty categorically unconstitutional, this would certainly fulfill an ambitious liberal goal. But the material impact of the ruling would be minimal, since the death penalty has become an increasingly rare practice with only a handful of states accounting for the vast majority of executions. If Hillary Clinton is able to replace Antonin Scalia’s vacant seat, the result would generally be the protection and incremental expansion of past liberal victories—far from trivial, but leaving a lot of fights that will be need to won outside of the courts.
Still, the Supreme Court is likely to swing substantially to the right or to the left of where it has been historically.
Could anything stop the Court from becoming as polarized as the rest of the political order? If current party polarization persists, probably not. But it’s not certain that it will. Tom Keck, a political scientist at Syracuse University and the author of an excellent recent book analyzing the Supreme Court in the context of contemporary partisan politics, told me that if the Democrats finally take control of the Court, the Court could become “ever more polarized, with Roberts, Alito, and Thomas serving as a perpetually dissenting GOP wing.” But it’s also possible that “the 2016 election marks a significant realignment of the party system, such that our current patterns of polarization get displaced. If/when this happens, internal divisions within each party (and within each party’s judicial wing) may be brought to the fore, such that voting alignments on the Court again start to fall on lines other than partisanship.”
In other words, if the Republican Party reacts to a likely Trump defeat at the polls by continuing its relentless march to the right, the polarization of Court is essentially inevitable. But if the current alignment proves unsustainable, all bets are off. My guess is that Trump will not cause a fundamental realignment, because a Republican Party that’s uncompetitive in presidential elections can still compete at state levels and in congressional elections where various structural factors favor conservatives. But this is ultimately a guess, and demographic changes will probably cause some partisan realignments down the road.
In the short term, though, the question will be whether the Court will be controlled by a liberal Democratic faction or a conservative Republican one, at a time when the gap between the two factions is unusually large. Even if Congress remains gridlocked, this means that the presidential and Senate elections in November will be high-stakes contests indeed.