05 November 2004

Supreme Mistake by Jerry Rosen/TNR

This article from the New Republic appeared before the

Supreme Mistake by Jeffrey Rosen

Activists say this election will determine the future of the Supreme Court. And it will. But not in the way they think.

Whether or not the Supreme Court decides the presidential election, the election will decide the future of the Supreme Court. And the first vacancy, which could come sooner rather than later, as Chief Justice William Rehnquist's surgery last week reminds us, is likely to provoke a partisan explosion that will make the battle over Robert Bork look like child's play. As Election Day approaches, liberal and conservative interest groups are trying to rally their bases with the same alarmist slogans they have been using for the past 30 years. If George W. Bush wins, "a 'perfect storm' of likely Supreme Court vacancies and potential cases heading toward the High Court could well lead to the overturning of Roe v. Wade," warns naral Pro-Choice America. If John Kerry wins, "Catholics should be aware that a Kerry-appointed U.S. Supreme Court could threaten the core values of their faith," counters George Marlin, author of The American Catholic Voter.

In fact, what is at stake in the election is not the future of Roe v. Wade, school prayer, or any of the culture-war issues that have inflamed the country since the 1970s. The left may be hesitant to acknowledge it, but the Rehnquist Court has largely sided with liberals rather than conservatives in these cultural battles. It has done so because liberals have won in the court of public opinion. And the chance of either Bush or Kerry getting through the Senate justices who want to revisit those well-settled precedents is low.

Instead, the election will determine the future of the Supreme Court in unexpected areas that remain, for the moment, less visible than abortion, but no less important. If Bush wins, his aides seem determined to select justices who would resurrect what they call "the Constitution in Exile," reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal. These justices could change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights, making it difficult for the federal government to address problems for which the public demands a national response. And, if Kerry wins, the justices he appoints are more likely to turn to international law to define the meaning of U.S. constitutional guarantees, such as due process, cruel and unusual punishment, and equal protection. If taken too far, the new internationalism could ignite an entirely new culture war for the twenty-first century. In other words, there are dangers for the Court regardless of who wins the election, just not the ones that both sides are predicting.

In every election since 1980, Roe v. Wade has dominated questions about the Supreme Court. But, on the Court today, there are six justices who support the core of Roe (Justice Anthony Kennedy dissented from the Court's 5-4 decision in 2000 to strike down bans on late-term abortions but still supports the right to earlier-term abortions). And, in order for Roe to be overturned, two of these justices would have to retire and be replaced by committed opponents. Even in the unlikely event that two such justices could be confirmed, the public overwhelmingly supports protections for early-term abortions. And conventional wisdom among political scientists, beginning with Robert Dahl in the 1950s and continuing until today, is that the Court does indeed follow the election returns and rarely challenges deeply felt currents in public opinion. This is why the Court, under the leadership of the swing justices, Sandra Day O'Connor and Kennedy, has extended the most popular liberal activist decisions of the Warren era while also endorsing conservative judicial activism as public support for the welfare state wanes.

The Bush White House is well aware of this, which is part of the reason overturning Roe is no longer at the top of the GOP agenda. Bush administration officials who have participated in conversations about judicial nominations during the past four years say that overruling Roe v. Wade no longer comes up as a priority in discussions about candidates. This de-emphasis of Roe also reflects the widespread understanding that Senate Democrats would filibuster any openly anti-Roe candidates, making it politically impossible, under the current ground rules, for Bush to get them confirmed.

Of course, if Bush is reelected and the Senate remains Republican, it is conceivable that GOP lawmakers might try to change the Senate rules so that filibusters could be ended by a simple majority of 51 votes, rather than the 60 votes currently required. For the past year, Senate Republicans, frustrated with Democratic filibusters of controversial Bush nominees, have discussed this so-called "nuclear option." The rules could be changed either through a formal vote of the Rules Committee, which would also require 67 votes in the full Senate, or by a parliamentary maneuver involving a ruling from the vice president, sitting as head of the Senate, which would only require a simple majority. But, while some conservatives might support this tactic to push through a hard-right Supreme Court nominee, moderate Republicans like John McCain have opposed it on the grounds that it would make the Senate more like the House. And Democrats could retaliate by going nuclear themselves, demanding roll-call votes for every minute procedural issue and bringing the Senate to a halt. Since neither party has a strong political incentive to see Roe overturned (agitation for doing so comes from interest groups on the extreme right, not from the Bush White House, which understands that overturning Roe would lead women to defect from the GOP en masse), it's hard to imagine that the desire to confirm anti-Roe judges would lead a majority of Senate Republicans to cut their own throats.

Instead of revisiting Roe v. Wade, a second Bush administration is more likely to focus on judges who will restore the Constitution in Exile. The phrase comes from a 1995 article by Douglas Ginsburg, a federal appeals court judge in Washington, D.C., whom Ronald Reagan unsuccessfully nominated to the Supreme Court after the Senate rejected Bork. Condemning American judges for being too deferential to the regulatory state, he announced, "For sixty years the nondelegation doctrine has existed only as part of the Constitution in Exile," along with other "ancient exiles" repudiated after the New Deal.

The legal doctrines to which Ginsburg referred were largely abandoned in the 1930s to allow the federal government broad discretion to regulate health, safety, the environment, and the workplace. The most important of the post-New Deal doctrines was an expansive interpretation of Congress's power to regulate interstate commerce, which the Court extended to include any activities that might affect commerce indirectly. In 1995, however, the Supreme Court began taking tentative steps toward resurrecting some of the constitutional limitations on the regulatory state that had been dormant since the '30s. In controversial 5-4 rulings, the Court limited Congress's power to ban guns in schools, for example, and to punish violence against women, holding that the laws did not involve commercial activities and therefore couldn't be justified by Congress's authority to regulate interstate commerce.

These decisions have been appropriately criticized as activist and contemptuous of Congress by liberal supporters of the regulatory state. A provocative new book by Thomas Keck accurately calls this The Most Activist Supreme Court in History because it has struck down 33 federal laws since 1995, the highest annual average ever. Nevertheless, the Rehnquist Court's so-called federalism revolution has not yet delivered what the conservatives hoped. Every time the conservative justices have appeared on the brink of striking down a federal statute with real political support, such as the Environmental Protection Act, O'Connor or Kennedy have written hedging opinions reassuring moderates that the Court intends to challenge congressional power only at the margins. But, if O'Connor or another liberal justice were to retire, and if Bush nominated a true believer in the Constitution in Exile, the federalism revolution would go into overdrive. And Democrats might not be able to block the appointment because, unlike abortion, federalism is not, at the moment, an issue the public understands or cares much about.

If Bush is reelected, the president's advisers are determined to choose justices who will be strict constructionists in the mold of Justices Clarence Thomas and Antonin Scalia. White House officials told me that even a respected judicial conservative like J. Harvie Wilkinson III, who has urged moderation in federalism cases, has been criticized by some presidential advisers as a "squish" for his refusal to carry the Constitution in Exile to its logical conclusion. Instead, these advisers might recommend someone more like Judge J. Michael Luttig, who tangled with Wilkinson in a recent case involving the constitutionality of environmental protections for red wolves. (Wilkinson said Congress could protect the wolves to promote tourism because tourism affects commerce; Luttig found the connection between tourism and commerce too remote.)

Although both Wilkinson and Luttig are intellectually serious and thoughtful candidates, both would be resisted by Senate Democrats because their records are well-known. Therefore, Bush might try a stealth candidate who has a shorter paper trail. Indeed, the White House already has a list of stealth candidates along these lines, many of whom are federal appellate judges appointed during Bush's first term. These candidates include people like Steven Colloton of Iowa, Jeffrey Sutton of Ohio, and Edith Brown Clement of Louisiana, whom the Senate unanimously confirmed in 2001.

How would a stealth candidate like Clement perform on the Supreme Court? Everything about her record suggests she would enthusiastically support the federalism revolution. This year, for example, a group of Texas developers challenged the constitutionality of the Endangered Species Act after the U.S. Fish and Wildlife Service, in an effort to protect a rare species of underground bugs, denied them a permit to develop a shopping mall. The Texas appellate court rejected the challenge, but Clement joined a blistering dissent by Judge Edith Jones (another possible Bush Supreme Court nominee) criticizing the panel for crafting "a constitutionally limitless theory of federal protection."

Taken to its logical limits, the Constitution in Exile would call into question not only environmental protections but workplace regulations like the Occupational Safety and Health Act. Furthermore, in the hands of a determined Bush majority on the Supreme Court, Congress's power to ban discrimination might be challenged as well. In a series of cases, the Supreme Court has limited Congress's power to authorize private individuals to sue states for discrimination or other violations of federal law. So far, the effect of these decisions has been muted by the fact that Congress still has the power to refuse to fund state programs unless the states promise in advance not to discriminate.

But some partisans of the Constitution in Exile on the lower courts are already questioning that power. In an important case this year, a panel of the federal appeals court in Washington, D.C., upheld a suit against the suburban Metro public transportation system by an employee who claims he was fired because he suffered from bipolar disorder. Congress had the power, the judges held, to condition the receipt of federal transportation funds on Metro's willingness to waive its immunity from lawsuits. In an unsettling dissent, however, Judge David Sentelle, a supporter of the Constitution in Exile, disagreed that Congress had the power to "expose the states to liability" for discrimination suits, because he thought there was only a remote connection between the purpose of the federal grant (supporting transportation) and the conditions of its receipt (preventing discrimination). This radical logic, if embraced and extended by a Bush-appointed Supreme Court, would represent a declaration of war on Congress, preventing the legislature from prohibiting race and sex discrimination in programs that receive federal funds and calling into question Title VI of the 1964 Civil Rights Act and Title IX of the 1972 Education Amendments.

As long as Congress remains Republican, it's conceivable a Bush Supreme Court could get away with attempting to impose restrictions on congressional power that have been unthinkable since the '30s. But, eventually, the Constitution in Exile might be invoked to strike down federal laws that the current Congress cares intensely about--such as federal criminal laws whose connection to interstate commerce is sometimes hard to discern. At some point, if the Court turns sharply right on federalism issues, it's not hard to imagine a conflict between Congress and the Court more dramatic than anything we've seen since the Warren era. In short, the greatest danger from a Bush Court is not the overruling of Roe v. Wade but the overruling of the post-New Deal regulatory state.

What about a Kerry Court? Throughout his campaign and Senate career, Kerry has not indicated much interest in using the courts as an engine of social change. And, even if he wanted to do so, he is likely to face a Republican Senate that would make it hard to appoint liberal activists in the style of William Brennan. It seems a fair bet, therefore, that Kerry would appoint judges like the Clinton appointees, Stephen Breyer and Ruth Bader Ginsburg, who believe the Court should reflect changes in social attitudes rather than unilaterally impose them in the face of popular resistance. In addition to political pressure to appoint the first Latino justice, which Bush would face as well, Kerry might look to Clinton appointees like David Tatel and Merrick Garland on the U.S. Court of Appeals for the Washington, D.C. Circuit, both scrupulous, intelligent, and fair-minded moderates.
Over the long term, it's true that Kerry justices would be more likely than Bush justices to recognize a constitutional right to gay marriage, for example. But, on the current Court, both the liberal and moderate conservative justices understand the dangers of a public backlash and are therefore unlikely to impose gay marriage on the nation anytime soon. And, while Kerry justices would take a more expansive view of Roe than Bush justices--continuing to strike down bans on partial-birth abortions, rather than reversing course and upholding the congressional ban--these are issues at the margins of our sexual politics that only constitute a tiny fraction of the total abortions performed.

But there is one area where Kerry justices could diverge dramatically from Bush justices: the relevance of international law. On the Rehnquist Court, Breyer and Ginsburg have enthusiastically endorsed looking to international laws and judicial opinions to determine the meaning of the U.S. Constitution. Last month, during arguments about the constitutionality of allowing 16-year-olds to be executed, both Breyer and Ginsburg emphasized that the 110 countries that allow capital punishment have renounced the execution of juvenile offenders. This prompted Scalia to interject with annoyance, "So what did John Adams think of the French?"
The willingness of liberal justices to consult international norms in constitutional cases has become a rallying cry for social conservatives: Bork's most recent book is called Coercing Virtue: The Worldwide Rule of Judges. But, although Bork's book is a slapdash polemic, other, more thoughtful conservative scholars, such as Jack Goldsmith of Harvard Law School, have argued persuasively that too much attention to international law could thwart U.S. constitutional traditions and reignite a domestic culture war. There are, after all, dramatic legal and cultural differences between European and American views about free expression, privacy, and due process. This means that, if judges become too willing to look to Europe, they may impose values on U.S. legislatures that the American public will be moved to resist. Moreover, there is nothing inherently progressive about European views on these contested issues: If U.S. courts looked to Europe in abortion cases, for example, they would allow more restrictions than Americans now tolerate.
Breyer and Ginsburg have been appropriately cautious in invoking international norms, citing them only as additional evidence of a consensus in cases where a clear majority of states have also rejected a controversial practice, such as sodomy laws or the juvenile death penalty. But it's possible that younger justices of a more internationalist bent might be more aggressive about invoking a purported international consensus to strike down practices that a majority of the American public continues to support--such as the death penalty for adults. For example, Dean Harold Koh of Yale Law School, mentioned as a possible Kerry Supreme Court nominee, has supported the idea that U.S. courts should expansively apply international legal precedents without the authorization of the president and Congress. And some justices have begun to invoke international law in areas where there is intense social disagreement, such as affirmative action. If anything could reignite the culture wars, it would be a decision by the U.S. Supreme Court to thwart deeply felt currents in American public opinion in the name of the international community. Given Kerry's emphasis on international opinion in his campaign, there's no reason to expect him to be attuned to this danger.
Concerns about the Supreme Court never determine presidential elections, but particular elections can indeed redefine the Court. After his landslide reelection in 1936, Franklin Delano Roosevelt made five nominations in the next four years; Nixon, elected in a squeaker in 1968, made three in similarly short order. The Republicans have a more aggressive agenda for reshaping the Court than the Democrats, and Bush has made his constitutional vision clear. It has little to do with overturning Roe v. Wade, but it has everything to do with resurrecting limits on federal power that might tie Congress's hands in domestic affairs as well as in the war on terrorism. Although Bush has aggressively expanded the size of the national security state since September 11, he has committed himself to a judicial vision that could render some of his own programs--including federal criminal laws he supports--unconstitutional. Kerry would feel less immediate pressure to use the courts as engines of social change because liberals won the old culture war; but, if the justices he appoints are too expansive in their concern about international opinion, they might inadvertently ignite a new culture war. In short, neither Bush nor Kerry justices are likely to be consistent defenders of judicial restraint. But at least voters in this election have a clear choice: conservative judicial activism or liberal judicial activism. Take your pick.

Jeffrey Rosen is the legal affairs editor at TNR.

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