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THE FUTURE OF THE SUPREME COURT AND THE CONSTITUTION
WHAT MIGHT HAVE BEEN
Everything changed in the Supreme Court on Saturday, February 13, 2016, when Justice Antonin Scalia died. From 1971, when President Nixon had his third and fourth nominees confirmed for the Court, until February 13, 2016, there were always at least five justices, and at times as many as eight justices, who had been appointed by a Republican president. For forty-five years, whenever the Court was ideologically divided, more often than not there were five votes for a conservative result.
But with the death of Antonin Scalia, there were suddenly only four justices appointed by Republican presidents: Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito. And there were an equal number appointed by Democratic presidents: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Although there have been times in American history where justices’ ideology did not correspond to the political party of the appointing president, that is not true today.
Roberts, Thomas, and Alito are very conservative. Many have a misleading impression of Roberts because he joined the liberal justices to uphold the Affordable Care Act (2010).1 But overall Roberts virtually always votes with his conservative colleagues, especially in the high-profile areas such as abortion rights, affirmative action, rights for criminal defendants, gay and lesbian rights, gun rights, voting rights, and religious freedom. At the same time, Ginsburg, Breyer, Sotomayor, and Kagan consistently vote in a liberal direction.
Kennedy has been the swing justice, by far the justice who votes most often in the majority. In 2016–2017, officially known as October Term 2016, he was in the majority in 97 percent of all the decisions. The year before, he was in the majority in 98 percent of the cases. He has been the fifth vote with the four liberal justices to strike down laws prohibiting same-sex marriage,2 restricting access to abortion,3 and challenging affirmative action programs.4 But overall, he votes with the conservatives about 75 percent of the time in ideologically divided 5–4 rulings. For example, he was the key fifth vote to strike down gun control laws for the first time in American history,5 to reject constitutional challenges to the death penalty,6 to allow corporations to spend unlimited amounts of money in election campaigns,7 and to allow business owners to refuse to provide contraceptive coverage for their employees based on the owners’ religious beliefs.8
In the past, there have been ideological surprises on the Supreme Court. Justices John Paul Stevens and David Souter were appointed by Republican presidents (Gerald Ford and George H. W. Bush, respectively), but by the end of their tenure on the Court they were consistently with the liberal bloc. Justice Byron White was appointed by President John F. Kennedy, but he voted much more often with the conservative justices, for example, rejecting a constitutional right to abortion and dissenting in cases expanding rights for criminal defendants.9 Earlier, Justice Felix Frankfurter was appointed by President Franklin Roosevelt and expected to be liberal, but he turned out to be a very conservative justice.
Such ideological surprises are much less likely today. Some of that is because the country is more divided along ideological lines than at many earlier times, and this is reflected in the justices who are picked. For instance, President Dwight Eisenhower was a Republican, but he was not particularly ideologically defined; there was uncertainty as to whether he was going to run for president as a Democrat or a Republican. He appointed two liberals to the Court: Earl Warren and William Brennan, a Democrat. It is impossible to imagine a president today appointing someone from the other political party.
There is also far more vetting today to make sure of a nominee’s ideology. Republicans want to be sure that there are no more David Souters. Souter, a former justice on the New Hampshire Supreme Court and briefly a federal court of appeals judge, was picked for the Court by President George H. W. Bush in 1990. Presidential adviser John Sununu and Senator Warren Rudman assured President Bush that Souter would be a “home run” in his conservatism. Once on the Court, however, he more often voted with the liberal justices: he was the fifth vote to reaffirm Roe v. Wade (1973)10 and limit prayer in public schools.11 Both Republican and Democratic presidents have learned from this and now do a much more thorough vetting of the ideology of prospective nominees. The last picks for the Supreme Court—Roberts, Alito, Sotomayor, Kagan, and Gorsuch—have all been exactly what the party of their nominating president have wanted.
The death of Justice Scalia and the resulting 4–4 split on the Court offered the possibility of a majority of justices appointed by a Democratic president for the first time since 1971. This is important because major ideological shifts on the Supreme Court are rare. The Court became very conservative by the 1880s and remained that way until 1936, striking down over two hundred progressive laws, such as those limiting child labor and imposing minimum wages and maximum hours in the workplace.
This changed in 1937, and soon after, President Franklin Roosevelt was able to fill the Court with Democrats committed to upholding New Deal programs. From the late 1930s through 1971, the majority of the justices had been appointed by Democratic presidents. Especially under the leadership of Chief Justice Earl Warren, the Court was famously liberal, striking down laws requiring racial segregation, applying the Bill of Rights to state and local governments, significantly increasing the rights of criminal defendants, and greatly expanding voting rights.
President Richard Nixon was able to select four Supreme Court justices between 1969 and 1971: Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. There has been a solid Republican-appointed majority on the Court ever since. Replacing Justice Scalia with a Democrat would have dramatically shifted the Court’s ideological balance for the first time since then. That is why Senate Republicans refused to hold hearings or a vote on President Barack Obama’s nomination of Chief Judge Merrick Garland for the Supreme Court. Unquestionably, Garland was superbly qualified. He had the perfect résumé for the position: a graduate of Harvard College and Harvard Law School, he clerked on the Supreme Court, was a federal prosecutor and a partner at a law firm before becoming a federal court of appeals judge. He served longer as a federal appellate judge than any Supreme Court nominee in history. By all accounts, he is a moderate, which is perhaps why President Obama picked him, hoping that would get him confirmed even in a presidential election year.
But from the day of Justice Scalia’s death, Mitch McConnell, the Senate majority leader, made clear that the Senate Republicans would not consider Garland’s nomination because it was the last year of Obama’s presidency. This was unprecedented. Supreme Court vacancies had occurred twenty-four times before during the last year of a president’s term. The Senate had confirmed in twenty-one of those cases and refused to approve in the other three. But this time, the Senate did absolutely nothing, and there wasn’t a thing that President Obama or Senate Democrats could do about it.
If Hillary Clinton had been elected president, she might have renominated Garland or perhaps picked someone younger and more liberal, but with the election of Donald Trump, the Republican strategy of blocking Garland paid off. President Trump replaced Scalia with a staunch conservative: Neil Gorsuch. In his first months on the Court, Gorsuch voted together with Clarence Thomas—as conservative as any justice in recent memory—100 percent of the time. In his first full year on the Court, he was with the conservative justices in virtually every case. Gorsuch was a very conservative federal court of appeals judge and was known for his conservative views when serving in the Department of Justice during the George W. Bush administration. No one, liberal or conservative, has any doubts that Neil Gorsuch will be exactly what the Republicans hoped for: a justice who will be at least as conservative as the jurist he replaced, Antonin Scalia.
WHAT IT MEANS
The ideological balance on the Court remains the same as before Justice Scalia’s death. The major progressive shift that would have occurred with Clinton’s election obviously did not happen and will not happen for a long time, with President Trump replacing Anthony Kennedy. Keeping this ideological balance has real consequences. Consider these examples.
Few issues so closely correspond to ideology and political party affiliation as the meaning of the Second Amendment. From 1791 until 2008, the Supreme Court had never invalidated any law as violating the Second Amendment. The Court always ruled that the Second Amendment was about a right to have guns for the purpose of militia service. But in District of Columbia v. Heller (2008), the Court, 5–4, struck down a thirty-two-year-old District of Columbia ordinance that prohibited private ownership or possession of handguns.12 Justice Scalia wrote for the Court, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito. Two years later, in McDonald v. City of Chicago, the same five justices were the majority in a 5–4 decision holding that the Second Amendment is a fundamental right that applies to state and local governments.13 These are the only cases in all of American history to invalidate laws as violating the Second Amendment.
Without Scalia, the Court was split 4–4 on the meaning of the Second Amendment. Merrick Garland or a Clinton nominee would have meant a Court that was unlikely to extend gun rights and very well might have overruled Heller and McDonald. Replacing Scalia with a conservative, Gorsuch, means a Court likely to strike down many other laws regulating firearms.
In June 2018, the Supreme Court dealt a severe blow to unions by holding that nonunion members cannot be required to pay the share of the union dues that support the collective bargaining activities of the union. In 1977, in Abood v. Detroit Board of Education, the Supreme Court reaffirmed that no one can be forced to join a public employees union. The Court, though, held that nonunion members can be required to pay the share of the union dues that go to support the collective bargaining activities of the union.14 The Court explained that nonunion members benefit from collective bargaining in their wages, their hours, and their working conditions. They should not be able to be free riders. The Court said, though, that nonunion members cannot be required to pay the share of the union dues that go to support the political activities of the unions; that would be impermissible compelled speech in violation of the First Amendment.
In two recent cases, in 2011 and 2014, the five conservative justices then on the Court—Roberts, Scalia, Kennedy, Thomas, and Alito—strongly indicated a desire to overrule Abood and prevent public employees from being required to pay their “fair share” of the union dues that go to support collective bargaining.15
A case, Friedrichs v. California Teachers Association (2016), was filed to provide that vehicle. Rebecca Friedrichs, an elementary-school teacher at a charter school in Orange County, California, objected to having to pay the share of the union dues that go to support collective bargaining. Hers was to be the test case to give the Court the vehicle to overrule Abood.
The case was argued on Monday, January 11, 2016, and there seemed little doubt that the Court was poised to overrule Abood. Not one of the five conservative justices asked a single question or made a single comment that left doubt about how he was going to vote. This would be devastating in California and twenty-one other states that do not have so-called right-to-work laws; there would be a substantial decrease in union revenues, union membership, and union political influence.
Justice Scalia died before the Court issued its decision on Friedrichs, so the justices announced that they were deadlocked 4–4, which means that the case was dismissed without decision by the Supreme Court.16 Abood remains the law. But with the appointment of Justice Gorsuch, the overruling of Abood seemed a certainty. Indeed, on June 27, 2018, in Janus v. American Federation, the Court did the expected and overruled Abood.17 This will be a very significant blow to unions and their political influence.
Separation of church and state
Views on the establishment clause of the First Amendment, which prohibits Congress from enacting any law “respecting an establishment of religion,” very much track political party ideology. Conservatives interpret this provision narrowly as only prohibiting the government from establishing a church or coercing religious participation. Liberals see the establishment clause as, in the words of Thomas Jefferson, creating a wall separating church and state. Prior to Justice Scalia’s death, the Court was split 5–4 between these two views, with the conservative position having the majority to allow much more government support for religion and much more religious involvement in government activities.
Replacing Scalia with Garland or a Clinton nominee would have meant five justices in favor of enforcing the separation of church and state. But with Trump’s appointment of Gorsuch, there again is a majority to allow much more in the way of prayer in public schools and other government events, religious symbols on government property, and government aid to parochial schools for religious instruction.18
Access to the courts
In a series of ideologically divided 5–4 decisions, with Justice Scalia in the majority, the Supreme Court in recent years has greatly protected businesses at the expense of injured consumers and employees. This has occurred especially in interpreting federal statutes and rules of procedure. The Court, for example, has ruled that clauses requiring arbitration in form contracts must be enforced and can be used to keep those with valid claims from suing in court.19 Similarly, the Court has significantly restricted the ability of those hurt to sue in class action suits.20 Especially when a large number of people each suffer a small injury, the only remedy is often a class action or nothing.
Replacing Scalia with a Democratic appointee would have shifted this balance. The Roberts Court has been the most pro-business Court since the mid-1930s, virtually always in 5–4 rulings, with the majority composed of Roberts, Scalia, Kennedy, Thomas, and Alito. Gorsuch replacing Scalia means that this will continue, and new limits on access to the courts, especially to sue businesses, will likely be imposed.
For forty years, the Supreme Court has held that people have a First Amendment right to spend unlimited amounts of money in election campaigns.21 Citizens United v. Federal Election Commission, in 2010, extended this to hold that corporations can spend unlimited sums from their corporate treasuries to get candidates elected or defeated.22 Large expenditures by rich individuals and corporations on behalf of candidates always raise the appearance of government officials beholden to those who spent the money to get them elected. Political races sometimes are decided by the money given, especially those of lower visibility where large expenditures can make a real difference. A progressive Court could have not only overruled Citizens United but also reconsidered the earlier holdings that equate money with speech and allow unlimited expenditures by the rich in election campaigns. In her campaign, Hillary Clinton said that she wanted to appoint justices who would overrule Citizens United, and it is very likely that she would have done so.
Since 1960, seventy-eight years old is the average age at which a Supreme Court justice has left the bench. At the time of Donald Trump’s inauguration on January 20, 2017, Ruth Bader Ginsburg was eighty-three, Anthony Kennedy was eighty, and Stephen Breyer was seventy-eight. No one should have been surprised when Anthony Kennedy announced his resignation on June 27, 2018.
This will create the most conservative Supreme Court since at least the mid-1930s. I have no doubt whatsoever that it will mean five votes to overrule Roe v. Wade and eliminate all constitutional protection for abortion rights, five votes to eliminate all forms of affirmative action, five votes to eliminate the rule that requires the exclusion of illegally obtained evidence in criminal cases. No one doubts that there will be cases brought to the Court to achieve these results as soon as there is a majority on the Court to come to these results. These have been the conservative targets for decades, but there have never been more than four votes for these results. Replacing Kennedy or Breyer will mean a majority for all of these conservative outcomes.
And if President Trump gets such a pick, that likely would create a solid conservative majority for years to come. In 2018, when Justice Kennedy retired, John Roberts was sixty-three, Samuel Alito was sixty-eight, and Clarence Thomas was seventy. Neil Gorsuch was forty-nine when he was sworn in as a justice on April 10, 2017. It is easy to imagine these four justices remaining on the Court ten or fifteen years, or even longer. With the new justice, it means a very conservative Court for years to come.
HOW SHOULD PROGRESSIVES RESPOND?
How progressives react to this reality will have enormous long-term consequences. Conservatives responded to the liberal decisions of the Supreme Court, such as to the rulings of the Warren Court era and to cases like Roe v. Wade, by developing and honing a clear vision of constitutional interpretation. Think tanks like the Heritage Foundation and groups like the Federalist Society led this effort. Conservative scholars, such as Robert Bork, wrote books articulating an intellectual framework to guide conservative justices, politicians, lawyers, and academics.
Progressives must fight back by offering an alternative vision of constitutional interpretation and constitutional law based on fulfilling the Constitution’s promise of liberty and justice for all. The conservative approach to constitutional law is an emperor with no clothes; it is conservative justices imposing their conservative values while professing not to do so. Constitutional law inherently and always is about value choices by those in the robes on the high court, whether the justices are conservative or liberal. Progressives need to expose how conservatives are using the Constitution to advance their own agenda, which favors business over consumers and employees and government power over individual rights.
But it is not enough to reveal the conservatives’ false promise of judicial neutrality. Progressives must offer their own vision for what the Constitution should be understood to mean and how this view far better achieves the goals of our nation, as stated in the Preamble, of ensuring democratic rule, effective government, justice, liberty, and equality.
A new vision is long overdue. Progressives have spent too much of the last forty-five years trying to preserve the legacy of the Warren Court’s most important rulings and looking for areas of occasional advance. We have reacted to Republican-dominated Supreme Courts by criticizing erosions of rights in particular areas but not by developing a progressive vision for the Constitution. Now more than ever, it is urgent to do this. An alternative vision will provide the basis for opposing conservative changes in constitutional law in the years ahead and ultimately guide judges and justices to forge an inspiring direction in the future.
The stakes are huge. Because of the election of Donald Trump and the shift on the Supreme Court, constitutional issues are likely to dominate the public discourse much more than at any time in recent American history. Basic questions about the meaning of the Constitution are going to arise in countless areas, ranging from immigration policy to reproductive freedom to the environment. How these are answered will do much to determine the country and the world we live in for decades to come.
That is my goal in this book: to articulate a progressive vision of constitutional law. My focus is not on what the Supreme Court is likely to do in the foreseeable future. If Hillary Clinton had won, this would have been a very different book, one focused on what a Court with a majority of justices appointed by Democratic presidents should be doing. But Donald Trump’s election means a conservative Court now and perhaps for the rest of my life.
SHOULD WE TURN AWAY FROM THE CONSTITUTION AND THE COURT?
In light of the ideological composition of the Supreme Court for the foreseeable future, it is reasonable to ask whether progressives should direct their attention away from the Constitution and the judiciary. The odds are low for the Court to be a vehicle for progressive results in my lifetime. I predict that many liberals in the years ahead will argue against the power of the Supreme Court to declare laws unconstitutional and advocate for a very minimal role for the judiciary and the Constitution.
The Constitution does not expressly give to the courts the power to review the constitutionality of laws and executive actions. No court had this power in England and it might be expected that the Constitution would have said so if it meant to change government in such an important way. The power of judicial review was created in Marbury v. Madison, in 1803, which held that the courts may declare unconstitutional both federal laws and executive actions. Chief Justice John Marshall explained that the Constitution exists to impose limits on government and those limits are rendered meaningless if not enforced. He famously declared that “it is emphatically the province and duty of the judicial department to say what the law is.”23
Judicial review has existed for almost all of American history, but it is not an inevitable aspect of having a constitution. The Netherlands, for example, has a written constitution, but that document explicitly states that it does not empower the courts to strike down government actions. The Netherlands has functioned as a democracy and without tyranny even though its courts do not have the power of judicial review.
In recent years, some prominent scholars have made a strong case for eliminating judicial review in the United States. Harvard law professor Mark Tushnet wrote a book titled, Taking the Constitution Away from the Courts.24 In a chapter titled “Against Judicial Review,” he asks what would happen if the Court overruled Marbury v. Madison and said, “We will no longer invalidate statutes, state or federal, on the ground that they violate the Constitution.” He says that over time “the effects of doing away with judicial review, considered from a standard liberal or conservative perspective, would probably be rather small, taking all issues into account.”
Professor Tushnet says that a nation without judicial review need not look like Stalinist Russia: “The examples of Great Britain and the Netherlands show that it is possible to develop systems in which the government has limited powers and individual rights are guaranteed, without having U.S.-style judicial review.” Professor Tushnet argues that a “popular constitutionalism” would develop where the people and their elected officials would feel more need to comply with the Constitution once they knew that the courts were not engaged in judicial review. Professor Tushnet believes that the results of popular constitutionalism would be more progressive than the constitutional law that results from Supreme Court decisions. And he wrote this long before the Trump presidency and the Supreme Court that may emerge from it.
Professor Tushnet is not alone among prominent constitutional scholars in making this argument. For example, Larry Kramer, former dean of the Stanford Law School, wrote a well-received book espousing what he also terms popular constitutionalism.25 Although Professor Kramer does not define popular constitutionalism with any precision and he does not go so far as to call for the elimination of judicial review, he does call for an end to “judicial supremacy” and a return of constitutional interpretation to the people. Professor Kramer, for example, argues that the people can be trusted, and he defends the deliberative processes of Congress as at least equal to those of the judiciary. He rightly points out that if Congress makes a mistake, it can be changed by that or the next or a future Congress. The change can be based on public pressure or election returns. But if the Court makes a mistake, the only way to overturn it is a constitutional amendment or to wait until the Supreme Court changes its mind.
Influential political scientists, too, have advocated for the elimination of judicial review. Pulitzer Prize winner James MacGregor Burns, a professor of government at Williams College, urges the elimination of judicial review, “based on the fact that the Constitution never granted the judiciary a supremacy over the government, nor had the Framers ever conceived it. It would remind Americans that the court’s vetoes of acts of Congress are founded in a ploy by John Marshall that was exploited and expanded by later conservatives until the court today stands supreme and unaccountable, effectively immune to the checks and balances that otherwise fragment and disperse power throughout the constitutional system.”26
Professor Burns argues, like Professors Tushnet and Kramer, that without judicial review elected government officials would be more vigilant about their duties to uphold the Constitution.
Voices such as Mark Tushnet, Larry Kramer, and James MacGregor Burns must be taken seriously. And they are not alone among contemporary academics who have called for an elimination, or at least substantial curtailment, of judicial review. I predict that this will be the rallying cry among many progressives in the years ahead. I am tempted to join them, especially as I contemplate the composition of the Court for years to come.
But I think that this effort is misguided and focusing attention on it will gain little. The Supreme Court and the lower federal courts will continue to engage in judicial review, regardless of what progressives say. Conservative justices will continue to strike down laws as they have in recent years, such as campaign finance restrictions and gun control statutes and key provisions of the Voting Rights Act. Calls to eliminate this power are not going to matter in the least, so why divert our attention? I believe our focus should remain on the desired meaning of the Constitution and its contents.
The Constitution, to be sure, is a flawed document. As written, it institutionalized and protected slavery. It prohibited Congress from restricting the importing of slaves for twenty years, counted slaves as only three-fifths of a person in drawing congressional districts, and mandated the return of escaped slaves to their owners. The Constitution, as written, gave no rights to women. It was written in the late eighteenth century for an agrarian slave society and it seems absurd to use it to answer twenty-first-century questions, such as whether the government ought to limit minors’ access to violent videogames or whether the police need a warrant to use cell tower information to track a person’s movements.
Yet we should also admire the Constitution for providing for democratic rule with orderly transitions of power since it was ratified in 1787. The separation of powers, and the checks and balances it creates, have prevented tyrannical rule. Overall, there has been a tremendous expansion of liberty and equality under it over the course of American history. Besides, if we turn our backs on the Constitution, what is the alternative and why believe that it would be any better?
Once I accept that the Constitution is worth keeping, then I also think it follows that it needs to be enforced. The classic argument for judicial review—put forth in Marbury v. Madison—is that the Constitution exists to limit the government, and those limits often will be meaningless unless there are courts to enforce them.
Especially for progressives, it is crucial to remember that those without political power have nowhere to turn for protection except the Constitution and the judiciary. In a telling passage, Professor Tushnet admits “my wife is Director of the National Prison Project of the American Civil Liberties Union. She disagrees with almost everything I have written in this chapter.” The reality is that the political process has no incentive to be responsive to the constitutional rights of prisoners. Admittedly, the Rehnquist and Roberts Courts have an overall less than stellar record of protecting prisoners’ rights, but I do not think that one could deny that judicial review has dramatically improved prison conditions for countless inmates who would otherwise be abandoned by the political process.27 When is the last time a legislature adopted a law to expand the rights of prisoners or criminal defendants? Moreover, how much worse might it be if politicians and prison officials knew that the constitutionality of their actions could not be reviewed by the courts?
More generally, there is little incentive for the political process to protect unpopular minorities, such as racial or political minorities. How long would it have been before southern state legislatures declared segregation of public facilities unconstitutional if not for Brown v. Board of Education (1954) and the decisions that followed it? How long would it have taken Congress, dominated by Southerners in key committee chairs, to have acted in this regard?
Sometimes the political process will even fail the majority. Reapportionment is the classic example here. By the 1960s, many state legislatures were badly malapportioned, with legislative districts of vastly different sizes. The migration of population from rural to urban areas was not accompanied by a redrawing of election districts. The result was that urban districts were much more populous than rural districts but had less representation. Malapportioned state legislatures were not about to reapportion themselves so as to decrease the political power of those in office. Every incentive led those who benefited from malapportionment to retain the existing system. Only judicial review could institute one person, one vote.
These, of course, are just some of the examples where the political process cannot be relied on to comply voluntarily with the Constitution. In all of these areas, it is likely the courts or nothing for enforcing and upholding the Constitution.
Judicial review also is essential to ensure that state and local governments comply with the Constitution. The nature of the federalist structure of American government is that there are fifty states and tens of thousands of local governments that can violate the Constitution. These include not only every town, city, and county but every school board and zoning commission. Scholars like Tushnet, Kramer, and Burns focus especially on Congress and the president in discussing the incentives for voluntary compliance with the Constitution. Kramer, for example, compares favorably the deliberative proves in Congress to that of the Supreme Court.
This focus ignores, however, the likelihood of constitutional infringements by all the other levels of government and the corresponding benefits of judicial review. A few examples illustrate this point. Without judicial review, the Bill of Rights would not be applied to the states. It was not until well into the twentieth century that the Supreme Court held that the Bill of Rights applies to state and local governments. Although most states might voluntarily comply with most of the Bill of Rights, some states certainly would not follow all of its provisions, especially where it is expensive or politically unpopular to do so. For instance, many states did not provide free attorneys to criminal defendants in felony cases until Gideon v. Wainwright in 1963.28 In this respect, those who advocate for the elimination of judicial review ignore its benefits in securing state and local compliance with the Constitution. How many local governments would advance religion in all sorts of ways if not for courts enforcing the First Amendment’s prohibition of laws respecting the establishment of religion?
As I have become increasingly disillusioned with the Supreme Court, and as I look to what the Court will be like in the years ahead, I have become more sympathetic to those who call for the elimination or substantial curtailment of judicial review. Yet, on reflection, I believe this would be a huge mistake. The danger lies in overestimating the likelihood of voluntary compliance by the other branches of government and underestimating the likely benefits of judicial review. I have spent the last thirty-five years arguing appeals on behalf of prisoners and those whose civil liberties have been violated. The first Supreme Court case I argued was on behalf of a man who was sentenced to life in prison with no possibility of parole for fifty years for stealing $153 worth of videotapes from Kmart. (I lost 5–4, with the Court rejecting my argument that the sentence was cruel and unusual punishment.) The second Supreme Court case I argued was on behalf of a homeless man who was challenging a six-foot-high, three-foot-wide monument of the Ten Commandments that sits exactly at the corner between the Texas State Legislature and the Texas Supreme Court. (I lost 5–4, with the Court rejecting my argument that this violated the establishment clause of the First Amendment.) I argued the first case on behalf of Guantanamo detainees, in federal district court and in the U.S. Court of Appeals for the Ninth Circuit, in 2002.
As one who often argues cases on behalf of prisoners or those whose civil liberties have been violated, I have the sense that popular constitutionalism is the product of an academic detachment that fails to recognize that, for clients like mine, it is often the courts or nothing. Prisoners and civil rights litigants may very well lose in the courts, but often the judicial process is their only recourse.
If the answer for progressives is not to turn their back on the Constitution and the courts, it must be to argue for an alternative vision to the one put forward by conservatives.
The first step—and this is the focus of chapter 2—must be to refute the conservatives’ legal notion of “originalism,” whereby all constitutional issues, including such controversial questions as the death penalty or affirmative action, can be resolved based solely on the original text of the Constitution and its meaning at the time it was written. Conservatives maintain that this allows justices to decide cases without imposing their own values. That is nonsense. There is no such thing as “value-neutral judging.” It is a myth that conservatives have advanced for decades and continue to espouse for their own purposes.
It is simply wrong to think that Supreme Court justices—liberal or conservative—can decide constitutional cases without making value judgments or that decisions in controversial areas are about anything other than the ideology of the justices. This is a smokescreen to make Americans think conservatives are basing their decisions on the “true” meaning of the Constitution, when actually their rulings are a product of their own conservative views. In 2008, for the first time in U.S. history, the five conservative justices on the Roberts Court declared a local gun control ordinance to be unconstitutional—a violation of the Second Amendment. In 2010, these same justices found that corporations have the right to spend unlimited amounts of money in election campaigns. In 2013, they invalidated a federal civil rights law in the area of race—a key provision of the Voting Rights Act of 1965—for the first time since the nineteenth century.
By any measure, all these cases were conservative judicial activism: each overruled precedent invalidated a law that was enacted with overwhelming support, broadly decided a matter when a narrow ruling was possible, and did so to advance conservative political values. Every one of these decisions was based on the ideology and values of the conservative Republican justices, not the text or the original meaning of the Constitution. It is laughable to say that the framers of the First Amendment intended that corporations should be able to spend unrestricted sums from their campaign treasuries to get candidates elected or defeated. Those who wrote the First Amendment did not envision campaign spending as it exists today, let alone modern corporations.
If the conservatives’ approach is empty and misleading, how do progressives replace it? The document should be interpreted to fulfill its central values. Therefore, it is essential to begin by identifying the core underlying values that the Constitution is meant to achieve. This is the focus of chapter 3. The place to start is at the very beginning, with the Preamble, which articulates the purposes for the document. The Preamble states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
The Preamble exists to do much more than tell us that the document is to be called the “Constitution” and that it is meant to establish a government. The Preamble describes the core values that the Constitution seeks to achieve: democratic government, effective governance, justice, and liberty.
Unfortunately, the Preamble has been largely ignored in Supreme Court decisions and scholarly writings. It has been treated as a mere rhetorical flourish to the Constitution. But, on the contrary, it is much more: it provides a lens through which the Constitution can be examined, articulating the basic values of the document that follows.
Finally, the bulk of this book, chapters 4 to 8, details how the Constitution should be interpreted to achieve the ideals announced in the Preamble: democratic government, effective governance, justice, freedom, and (implicitly) equality for all Americans. Each of these chapters describes a progressive vision for one of these core values.
I, of course, am not making an argument that I know the intent of the framers of the Constitution in these areas. Their intent cannot be known and should not limit contemporary constitutional law. The Constitution must be adapted to the problems of each generation; we are not living in the world of 1787 and should not pretend that the choices for that time can guide ours today. Chief Justice John Marshall expressed this realization almost two hundred years ago when he said that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.”
My goal is to show how the values stated in the Preamble provide guidance in understanding the meaning of the Constitution and how they should help in deciding today’s most important and controversial issues.
Given Donald Trump’s election, it is not likely that my vision will be adopted in the immediate future. But that’s not the point. Conservatives, in their think tanks and Federalist Society cliques, have spent years articulating and elaborating a conservative vision of constitutional law and the role of the Supreme Court. They did this even during years when conservatives were out of power. Liberals may have thought it futile to create a different and progressive vision with conservative justices in the majority on the Supreme Court for the last forty-five years. Perhaps, too, progressives have been wedded for too long to the Warren Court’s vision and not thought enough beyond it. Now is the time to provide and defend and fight for an alternative, grander, and more inclusive interpretation of the Constitution.
Looking at the Constitution in a progressive way would produce a very different approach, one that would do much more to provide liberty and justice for all. In most areas, it would not take more than the shift of a single justice to create decisions pointing constitutional law in a fairer direction that does much more to realize the promise of the Preamble and the Constitution. Maybe the unexpected will happen and there will be a progressive majority on the Court sooner than I or anyone expects. Some of what I propose can be accomplished through legislative action at the federal or state levels; much can be done under state constitutional law when the Supreme Court and federal courts do not act.
But I am confident that someday the things that I propose will happen and what is said today will powerfully influence what can be done then. Also, if we fight for a progressive interpretation of the Constitution, we might sometimes have surprising successes.
It is so tempting to look at the composition of the Supreme Court as a historic inevitability. But in reality it is a product of coincidences between the timing of vacancies and who is in the White House. If Hubert Humphrey rather than Richard Nixon won in 1968, and it was a very close election, then a Democratic president would have picked four new justices between 1969 and 1971 and that would have continued a liberal majority on the Court for decades more. If Al Gore or John Kerry had been president in 2005 when William Rehnquist and Sandra Day O’Connor left the Court, there would be five justices appointed by Democratic presidents on the Court today, notwithstanding the election of Donald Trump, the appointment of Neil Gorsuch, and the resignation of Anthony Kennedy. If Hillary Clinton had been elected president—and she did win the popular vote by three million votes—and had replaced Antonin Scalia, the next years and perhaps decades of constitutional law would be vastly different.
So I think it is important to step away from the current composition of the Supreme Court and focus instead on what should be the meaning of the Constitution itself. How should progressives interpret this majestic but flawed document? The Constitution, and how it is interpreted, affects all of us, often in the most intimate and important aspects of our lives. How should it be interpreted to create a nation where there truly is liberty and justice for all? That is the question I seek to answer in this book.
Copyright © 2018 by Erwin Chemerinsky