The Hinge of History

The future of the Court for the next generation is up for grabs this election, truly, and the choice couldn’t be more stark.

June 29, 2016

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

The Supreme Court ended its term this week diminished literally and figuratively by the February death of Justice Antonin Scalia. The refusal by Senate Republicans even to hold a hearing to consider his successor, pro-prosecution centrist Merrick Garland, is not just an act of hostility and disrespect toward President Barack Obama it is also an insult to the federal judiciary in all its forms. Each 4-4 tie hammered out this spring by the justices, each unresolved statutory or constitutional dispute, reminded us that there is a reason the Court needs to operate with an uneven number of jurists so that it may, indeed, be the nation's court of last resort.

The end of the term always brings us major decisions and a seemingly endless stream of analysis and commentary about what the justices did or did not do in the preceding nine months. It was no different this year. One central truth about what we all just endured is that Justice Scalia's death deprived the Court's four other conservatives of the major victories advocates presumed they had lined up, from the death of affirmative action to the neutering of public unions to the endorsement of abortion restrictions to a hold on the administration’s immigration initiative. Just think of the poetic justice (or injustice) of Justice Scalia’s death from the conservative perspective. They were so close. After so many years. And then their standard-bearer fell. And then they largely failed. 

That doesn't mean, as others have casually concluded, that Justice Anthony Kennedy and company have somehow orchestrated e reconstruction of a liberal Court or that Justice Sonia Sotomayor somehow has become this generation's Thurgood Marshall. Justice Kennedy did not spare the administration's immigration program, or press to accept a case that would reevaluate campaign finance rules and overturn the odious precedent of Citizens United. And Justice Sotomayor's pointed defense of the Fourth Amendment rights of citizens detracted from her general lack of interest in the Eighth Amendment rights of condemned prisoners. Justice Marshall never would have consented to the executions now taking place under a shroud of secrecy by state officials who conspired with lawmakers to ensure a lack of accountability over capital procedures.

What this term really represents, apart from the sum of its decisions and orders, is a hinge in the Court's history. Justice Scalia is gone, and while Senate Republicans have succeeded so far in preventing the Court's ideological balance to tip slightly more to the left that shift will be inevitable if Hillary Clinton beats Donald Trump this November. If that happens, GOP leaders may or may not rush to confirm Garland believing him a more palatable alternative to Clinton's first nominee. But whether they do or they don't Clinton will be able to shape the Court in a way her own predecessor has not. She will be the president who presides over an ideological realignment we have not seen on the Court in a generation.

If that day comes, and the pendulum swings back, we will see a lot more angry dissents from Justices Clarence Thomas and Samuel Alito along the lines of what we saw and read this past week. We will see a lot more damage control from Chief Justice John Roberts, along the lines of what we have seen from him since the passing of his colleague in February.  And we will see a diminishment in the swing-vote role that Justice Kennedy has played since Justice Sandra Day O'Connor and John Paul Stevens left the Court. My theory about the Reagan appointee from California scorned so roundly today by his fellow conservatives? Justice Kennedy didn't change so much as the cases that came before him did; they became too radically conservative, even for him.

The 2015-2016 Term then represents the end of the beginning of a likely transformation the likes of which we have not seen since the Nixon appointees flooded the Warren Court in the early 1970s and the Reagan-Bush appointees pushed out the last liberal holdouts in the late 1980s and early 1990s. For many Americans, even middle-aged Americans, they have never lived in a nation guided by a more liberal as opposed to a more conservative Supreme Court. That may change by next June, when those poor interns are running out of the press office with published opinions in their eager, little hands.

But even if Clinton wins, and appoints a justice or two or three, we are not likely to see again the wild jurisprudence of the Warren Court. We might see more protection for voting rights and less protection for corporations; we may see more accountability for police, prosecutors and prison guards and a rebuilding of walls separating church and state; we may even see the Court take a larger number of cases, reversing decades of the Rehnquist-Roberts policy designed to limit the Court's role. I wouldn’t call that Warren Court-Lite. I would call that the backlash against the backlash.

And if Donald Trump becomes president? The hinge will swing right back to where it was before Justice Scalia died. Trump will appoint conservative jurists—from the looks of it, far more conservative than Garland is liberal—and the Court will continue its rightward tack into the foreseeable future. If that happens the liberal victories this term, both the major and minor ones, will feel to progressives in five years like a tiny spark of light in the darkness of the Rehnquist/Roberts era. Either way, the future of the Court for the next generation is up for grabs this election, truly, and the choice couldn’t be more stark.

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