The Great Liberal Reckoning Has Begun
The death of Justice Ruth Bader Ginsburg ends an incredible legal career, one that advanced gender equality and inspired millions. RBG, as she became popularly known, was, like Thurgood Marshall before her, one of the handful of justices who, through their work as lawyers fighting for justice, can truly be said to have earned their spot on the judicial throne. But the outpouring of grief that has followed her death is not just for the passing of a revered figure in American law but also for the end of an important force in American society: the liberal faith in the Supreme Court.[Read: What Ruth Bader Ginsburg’s death means for America]This faith is more recent than many people recognize. A century ago, the biggest critics of the federal judiciary were on the left, and for good reason. For most of its history, the Supreme Court was the most conservative of the three branches of government, consistently blocking, or at least delaying, efforts at social, political, and economic reform. From Dred Scott and Plessy v. Ferguson, in which the Court upheld the subordination of racial minorities, to Lochner, which denied the government the ability to regulate much of economic life, the Court epitomized what William F. Buckley would later identify as the conservative credo: the impulse to “stand athwart history, yelling Stop.” By the Progressive Era and the Great Depression, it was widely held that the Supreme Court could only hinder, not help, the cause of reform.But then, for a few decades, everything changed. The fundamental reason was politics: Over his 12-year presidency, Franklin Delano Roosevelt appointed a record eight new justices, nearly an entire Supreme Court’s worth, two of whom—the liberal icons Hugo Black and William O. Douglas—served into the 1970s. The context changed as well: The federal government’s massive expansion during the New Deal and World War II transformed both elite and popular understandings of the Constitution. This change was so profound that Dwight Eisenhower, the first Republican president elected after FDR, appointed the two justices, Earl Warren and William Brennan, who would later lead the Court to its liberal zenith. These were the decades of Brown v. Board of Education, of the removal of religion from public schools, of the expansion of free speech and the rights of criminal defendants. In these decades the Court was a true partner in the political branches’ attempt to move the country forward.Richard Nixon began the Supreme Court’s shift back to the right, appointing conservatives like Warren Burger, Lewis Powell, and William Rehnquist. Liberals still won a few important victories—most notably 1973’s Roe v. Wade—but since 1969 Republican presidents have appointed 14 justices. Democrats have appointed only four. The past half century of American constitutional law is defined, more than anything else, by this simple fact.From today’s vantage point the fragility of the mid-century liberal judicial victories is abundantly clear. The Supreme Court repeatedly retreated from its promise of sweeping change. Brown repudiated the notorious “separate but equal” doctrine that justified Jim Crow segregation, but when, a year later, the Court was asked to enforce its initial ruling, it meekly held that southern states should desegregate public schools “with all deliberate speed.” Determined southern officials ran circles around cautious federal courts, and desegregation did not begin in earnest until the passage of federal civil-rights legislation in the mid-1960s. This story has played out over and over again. Criminal procedure has become steadily less friendly to criminal defendants over the past 50 years. And Roe’s strict limits on government regulation of abortion were replaced by Planned Parenthood v. Casey’s far laxer “undue burden” test, under which abortion rights have weakened to such an extent that many scholars view Roe as having already been essentially overruled.[Elizabeth Wade: My abortion before Roe v. Wade]While the Supreme Court was under-delivering on its promises, liberal elites were devoting much of their intellectual and emotional resources to the Court, hoping against hope that an appeal to the swing justice will eke out a 5–4 victory for this or that liberal cause. Lawyers and scholars spent a decade trying to bring Anthony Kennedy into the fold, citing his landmark rulings on gay rights and wartime civil liberties as evidence of an imminent conversion to the liberal cause. Yet all the while, Kennedy kept adding to his deeply conservative voting record, a legacy he made sure to preserve by retiring in 2018, thereby allowing a Republican to appoint his successor. Lately focus has turned to John Roberts, in the hope that his commitment to the Supreme Court as an institution will moderate his otherwise-conservative legal positions. And while Roberts, like Kennedy before him, has occasionally voted with the liberals—such as in upholding the Affordable Care Act and ruling against the Trump administration in several important cases last term—the Court’s march to the right continues.The choice to focus on courts has had its most fateful results with abortion, in which the lion’s share of liberal organizational energy has gone into desperate, rear-guard defenses of judicially granted abortion rights. Despite the work of groups like Planned Parenthood and NARAL, anti-abortion-rights advocates have captured statehouses in red states and many purple ones, with one-third of the more than 1,000 abortion restrictions since Roe passed in just the past decade. Roe failed to create a durable political consensus in favor of abortion rights, as occurred over the same period in Western Europe, where abortion rights were secured by legislatures rather than courts. This failure has been one of the key criticisms of Roe from pro-choice advocates, and RBG herself criticized Roe’s sweeping reach on these grounds in a 1985 essay, noting, “The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”If the Supreme Court has proved itself, time and time again, to be unwilling or incapable of advancing the liberal conception of justice, why have so many liberals, for so long, let themselves be victims of judicial gaslighting? Part of it is that the Warren and early Burger Courts painted a vivid, alluring picture of what justice by judiciary could look like. And even if liberals understood, deep down, that those two decades were an aberration in American legal history, the Court has given them just enough victories since then to keep the dream alive. For lawyers and law professors, there is also the simple matter of professional vanity: If the Supreme Court is the vanguard of American justice, then judges, and thus the lawyers who argue before them and the scholars who analyze (and, when necessary, chastise) them, are the nation’s most important profession—the priests and elders of the civic religion that is American constitutionalism.[Leah Litman: Progressives’ Supreme Court victories will be fleeting]Fundamentally, though, many liberals loved the Supreme Court for the same reason they loved the law: a vision of universal harmony and justice brought about by reason and persuasion, not the brute forces of political power. Victory in the political arena is always incomplete and uncertain, not to mention grubby. Politics appeals to our baser instincts of greed and fear and competition—which, of course, is why it is so powerful. By contrast, law—whether through “neutral principles” or “reasoned elaboration” or elaborate moral theories, to name a few of the core organizing ideas of 20th-century legal theory—holds out the promise of something objective, something True. To win in the court of the Constitution is to have one’s view enshrined as just, not only for today but with the promise of all time.But eventually liberals lost faith that the Court would interpret the Constitution in their favor. What started as a trickle of disillusionment grew throughout the 1980s and ’90s and became a torrent when Roberts became chief justice in 2005 and led the conservative wing to undermine a number of liberal legal priorities, from gun control to campaign-finance law to voting rights. Although many liberal lawyers still dutifully fight in federal court to protect rights where they can, they do so with the increasing understanding that they are simply delaying the inevitable. And legal scholars have gradually given up on the Court as a guarantor of constitutional values, advancing theories of popular constitutionalism or progressive federalism to serve as a counterweight to the Court’s conservative transformation. Whatever was left of the Court’s sacred aura as above partisan politics was ripped away by Mitch McConnell’s denial of a vote to Merrick Garland in 2016 and the bitterness of the confirmation hearings over Brett Kavanaugh two years later.The clearest sign that many liberals are giving up their remaining idealism about the Court is that, for many moderate Democrats (not to mention those on the progressive left), court packing has gone from a fringe theory to not just a viable option but a moral imperative if Joe Biden wins in November and the Democrats take back the Senate. Court packing is straightforwardly constitutional—the Court’s size fluctuated before the Civil War, and its current composition of nine justices is set by statute. But adding justices in retribution for the perfidy of Senate Republicans would require taking a wholly instrumental view of the Court—just another veto point in America’s groaning vetocracy, a super-legislature subject to the same politics as Congress or the White House. It’s a truth that many historians and political scientists have understood for a long time but that many lawyers are only beginning to accept. And it’s a hard, disenchanting truth.The end of the liberal love of the courts will not, of course, be the end of liberals’ fight over them. Liberals will continue to work to get their judges on the Supreme Court and the lower courts. They will champion court decisions that go their way and will explore limiting the judiciary’s powers when it rules against them. Liberals will, in short, act more like conservatives, whose disillusionment with the mid-century Court freed them to view the judicial branch as an instrument of political power and to be unembarrassed by an explicit effort to staff it with the ideologically reliable, just as political parties choose their candidates. This realpolitik approach to judicial nominations is the reason for the Republican Party’s stunning success in reshaping the federal bench, and it is one that liberals will have no choice but to adopt themselves if they want to fight back.In time, liberals may yet win the battle over the federal courts, but any victory will be bittersweet, because in their hearts they will know that the lofty dream is dead. Law is no savior from politics; it is only a temporary reprieve from the struggle between powers over power. Battle is coming. The question is: Do liberals still remember how to fight? Because conservatives certainly do.