Why the Supreme Court Argument Falls Flat

For those Republicans who can’t stomach the idea of Donald Trump as President but are desperately seeking an excuse – any excuse – to justify their votes for him, the primary argument they use is the Supreme Court.  With the vacancy caused by the death of conservative stalwart Antonin Scalia, the next president will have at least one immediate vacancy to fill.  Two other justices are octogenarians, creating the potential for even more appointees for the next President.

Any time a Republican announces their unwillingness to support Trump, the immediate response is often some version of Hugh Hewitt’s view: “It’s the Supreme Court, stupid.”

The argument sounds reasonable.  That is, until you start looking more deeply at the last half century of Supreme Court jurisprudence, how the Court works, and the tools Republicans will have to stop bad appointees.

When you do that, it’s hard to conclude that the potential damage of a liberal majority on the court is as great as some make it out to be.

National Review’s Ian Tuttle broke down some of this argument yesterday.  He wrote,

Consider: Between January 2012 and June 2014, the Supreme Court ruled against the Obama administration unanimously 13 times — on everything from recess appointments to abortion-clinic “buffer zones.” This was not an anomaly. Since 1995, almost every year has seen more than 40 percent of cases — that is, a plurality — decided unanimously; in 2013, it was two-thirds. (To be fair, there are different degrees of unanimity.) Meanwhile, only twice since 1995 have more than 30 percent of cases split 5-4. This suggests that the Court’s justices are more likeminded legally than political pundits often recognize. There are important swaths of agreement. This was demonstrated decisively in 2012 in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, in which the Court unanimously ruled that federal discrimination laws do not apply to religious organizations’ ministerial-hiring decisions. Even the liberal wing of the Court has shown contempt for certain obvious acts of overreach.

Tuttle also pointed out that Trump’s views are so hard to pin down, there is no way to be sure his choices would be any better than Clinton’s.  Leaving that argument aside, and assuming arguendo that Trump would choose more conservatives and Hillary would choose more liberals, her appointments are still unlikely to result in the apocalyptic vision some Republicans have been painting.

Political pundits are quick to condemn things like judicial activism and to declare the Court just another political branch that makes its decisions based on ideology, not the law.  That’s a common misconception.  For the most part, the Court goes out of its way not to step in the middle of highly contentious political fights, only doing so when absolutely necessary.  Even then, many of their decisions don’t make the “landmark” category, rarely resulting in wholesale changes or reinterpretations of law and, on constitutional questions, the Court generally strikes down laws only as a last resort.  The Court usually decides cases as narrowly as possible, and uses any excuse it can to avoid overturning federal law.

Now, the response to this argument from the Trump apologists is to point out major cases that conservatives have “lost” over the years, whether it was NFIB v. Sebelius (the Obamacare decision) or Obergefell v. Hodges (the marriage equality decision).  Surely, we can expect more of those kinds of decisions with a liberal majority on the Court, they argue.  What those apologists seem to ignore is those decisions were made with a strong conservative majority on the Court.  In fact, in Sebelius, the decision was 5-4, led by Chief Justice Roberts, on the most important section regarding the tax power, and the joint dissent was joined by the nominally conservative swing Justice Anthony Kennedy.  No matter what some complainers may say, Chief Justice Roberts has been a steady, conservative hand at the Court.

It’s also important to note what hasn’t happened over the last forty years, during the period beginning with the courts led by Chief Justices Warren Burger and William Rehnquist.  Since Chief Justice Burger’s ascension, the Court has been reliably conservative.  Despite that ideological bent, the holy grail of conservative jurisprudence – the overturning of Roe v. Wade – never happened.  In fact, for the most part, the Court’s decisions have not made massive changes in our political and societal outlook.  Perhaps the biggest change was Citizens United, which is roundly condemned by many liberals for injecting billions of dollars into political advocacy, but that change has benefited liberals and conservatives alike.  Other major landmark cases, like Lawrence v. Texas (the sodomy law case), and United States v. Windsor (federal gay benefits case), were decidedly losses for social conservatives, but were made despite holding a conservative majority.  Conservatives controlling the Court didn’t stop the march of gay rights or shutdown Obamacare.  So how can we argue that having a conservative majority is so critically important?

“But it would be even worse under a liberal court!” the apologists exclaim.  Would it really, though?  Let’s look at it from the opposite view – what liberals have been watching for the last forty years.

Liberals can point to a handful of cases they don’t like – with DC v. Heller, the gun rights case, being the most obvious, and Citizens United coming in close behind it.  Other than those two landmark cases, and perhaps Bush v. Gore, what other landmark cases can liberals point to that have devastated their cause?  Not many.  The reason for that is simple – the vast majority of the decisions the Supreme Court makes are incremental in nature, and rarely result in landmark decisions that radically change the political landscape.

The other thing that most people – professional and armchair pundits alike – don’t realize is that the Court’s glacial pace and structure tend to constrain even the most activist of Supreme Court jurists.  The Supreme Court can’t decide anything without an active case or controversy, and it can take years for the right set of circumstances to arise to get a case to the Court.  Even then, the doctrine of stare decisis still has considerable power, and the Court is generally loathe to contradict itself.  Only when their previous decision has been so erroneous as to justify reversal or facts have changed so much as to make the previous decision untenable does the Court go so far as to completely flip its interpretation of the law.  That’s why the idea that a liberal Court could reverse DC v. Heller makes little sense.  It took 70 years for the Court to overturn the 1930s era collective rights view of the 2nd Amendment, and it took nearly 30 years of a conservative Court and multiple court challenges every year for the right gun rights case to get squarely before them so they could do so.  The idea that barely a decade could pass before that decision is overturned just doesn’t square with the general timeline for reversal in major cases.

Two of the worst decisions made by the Supreme Court – Dred Scott v. Sandford and Plessy v. Ferguson, were good law for decades before being wiped off the books.  It took a war and a Constitutional amendment over a decade later to reverse Dred Scott, and it took 58 years before Plessy was overturned by Brown v. Board of Education.  Baker v. Nelson, which had held laws barring gay marriage constitutional, was overruled by Obergefell after 44 years.  The idea that Heller could be wiped off the books by a Clinton appointed Court in our lifetimes is just not realistic.

Even at its worst, the damage caused by a Clinton appointed liberal court would take years, if not decades, to manifest itself.  Further, as one can see by reviewing the list of landmark cases over the last half century, beginning with the Warren Court, the biggest cases that resulted in landmark decisions almost always involved individual rights, and the Court has nearly always come down on the side of expanding those rights – even if conservatives don’t agree with those expansions, like with abortion and gay marriage.  The arc of history has always trended towards expansion of rights, and the idea that the Supreme Court would restrict an individual’s right to bear arms isn’t borne out by the Court’s history, regardless of ideology.

Finally, the Constitution still puts checks and balances on the Court. Republicans will still have the power to block any Clinton Supreme Court appointee who appears to be too liberal.  Even if we lose both the White House and the Senate, we still have the power to filibuster bad decisions, as Harry Reid’s “nuclear option” for judicial appointments didn’t include Supreme Court justices.  I think it’s safe to say that Ted Cruz would be more than happy to lead those efforts, if necessary.

The idea that all Republicans must support Trump because of the Supreme Court is simply another example of fearmongering in a presidential campaign that has been almost exclusively built on fearmongering.  The potential damage a liberal Supreme Court can wreak upon our nation is no greater than the potential damage of a Donald Trump presidency – completely unknowable.

 

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