Thursday, August 09, 2018

Justice-to-be Kavanaugh and the Inevitable Backlash

By Eric Segall

I wrote an essay for SLATE this week making a non-partisan case against the nomination of Brett Kavanaugh. I concede that he is eminently qualified to be on the Court, and I’ll take it as an article of faith that he is a man of strong character and an all-around good guy. Nevertheless, there are compelling reasons why even Republican Senators should vote against him. I’m not naïve enough to believe any of them will, but understanding why they should reveals some interesting aspects of the relationship between the Supreme Court and the rest of our political system.

           Professor Barry Friedman has persuasively made the case that for most of American history, the Supreme Court has been either left or right of center and has rarely strayed too far from dominant majority opinion. As I pointed out in SLATE, however, and as Barry has conceded in a few tweets, that is about to change as the new conservative Court will most likely aggressively further conservative causes in a manner we haven’t seen in almost a century. When the Court has on occasion tried to push a strong conservative (or more rarely liberal) agenda, or has tried to resolve intractable societal debates, there has been crisis and backlash. That is likely to happen again.
           In 1857, the Court thought it could bring the slavery issue to a close in the infamous Dred Scott v. Sandford. Instead, the Justices’ decisions that Blacks could not be citizens of the United States and Congress could not abolish slavery in the territories hurled us towards the Civil War. The Court tried to do much too much.
           Between 1900 and 1936, “aged and infirm” Justices, in the words of President Franklin D. Roosevelt, invalidated scores of progressive laws regulating minimum wages, overtime rules, workplace safety conditions and labor unions. That quarter of a century of judicial aggression led to a period of almost complete judicial deference to such laws as well as Roosevelt’s crisis-provoking Court-packing plan.

This year the Justices got back into the overturning economic legislation business using the first amendment as its weapon. But the period of almost total deference to such laws lasted for over eighty-years and was a direct response to the Court’s over-reaching during the infamous Lochner era of the first third of the 20th century.
            The Court’s decision in Roe is my final example. There are serious scholars who deny it, but the reality is that the Court’s capture of this issue has led to substantial backlash in judicial confirmation battles and local and national politics at great cost to virtually every issue feminists care deeply about. And, even as to abortion, poor women especially in rural areas are not that much better off than they were in 1972 before Roe was decided. As I mentioned in SLATE, even Justice Ginsburg, the most important proponent of equal rights for women (including the right to choose), believes Roe was too much too fast and should not have resolved the controversies surrounding abortion in “one fell swoop.”
          The point of this history is that when the Court pursues its own far left or far right agenda, or tries to resolve too much too fast, there is inevitably a backlash or a crisis. Once Kavanaugh is confirmed, the Court will be without a real swing Justice for the first time in over forty years. Although Chief Justice Roberts may try to go slowly, the temptation to turn back the clock on abortion, gay rights, and affirmative action, along with the desire to use the first amendment to deregulate the economy, will likely prove too great to resist. Although the Court may not expressly overrule many cases, it will almost certainly shred them to the point of legal insignificance.
           It is not in the long-term interest of the GOP, conservatives, or the American people for the Court to move so dramatically to the right. Of course, politics is mostly a short-term affair, but ignoring history is a dangerous business. A right-of-center Court can stay in business a long time and although my politics are different, in the words of Jeffrey Toobin, “we get the Court we deserve.” But a far-right Court for a generation will yield crisis and backlash with the degree related quite closely to the relative distance the Court puts between itself and dominant majority opinion. If conservatives and libertarians succeed in building a Court substantially to the right of the American center, the backlash will be strong. Bet on it.


Michael C. Dorf said...

Eric and I have gone back and forth in private on this, but to summarize my position: I more or less agree about the general proposition. I'm skeptical of the too-far-too-fast critique of Roe, for reasons I provided in the second of a two-part series I wrote on the 40th anniversary of Roe. Part 1 is here:
Part 2 (which responds specifically to too-far-too-fast) is here:

Marty Lederman said...

Why will the GOP regret it? What's the downside for them?

P.S. What's worse, the coming doctrinal revolution will be by a majority of the Court in which four of the five Justices were appointed by Presidents who attained office despite losing the popular vote, two of whom (Gorsuch and Kavanaugh) will have been confirmed over the opposition of Senators representing 53-57% of the Nation. It's one thing if a sustained electoral landslide leads to a judicial tidal wave (cf. 1936 onward); quite another if the revolutionary Justices are appointed by distinct electoral minorities.

Eric Segall said...

Excellent points Marty!

Joe said...

The downside, as I understand it, is that their current heavy-handed approach has limited staying power. Jack Goldsmith criticized Bush43's policies in a somewhat comparable way: he was sympathetic overall with the executive power arguments made in the "war on terror" context and the like, but feared they were being pushed in such a heavy-handed way that there would be blowback. Cushioning the blow some would help the long term success of the policies without losing much of the core goals. Heavy-handed approaches also could make winning elections harder. The full effects here might only come in the 2020s though.

Shag from Brookline said...

Is there a realistic fear that a SCOTUS with a Justice Kavanaugh might render decisions comparable to Dred Scott (1857)? Or might such a Court reflect upon how "history" came to regard the Taney Court? Such a Court could make America even more divisive than it is today. Would CJ Roberts permit that to happen to his Court? Would CJ Roberts consider the impact of such possible decisions upon the public? If the public loses its support of the Court, would that further erode the public's confidence in government and especially the role of separation of powers with the political polarization of the elective branches? The majority (7-2) made a bad decision, a mistake, with Dred Scott; but 5-4 decisions of a SCOTUS with a Justice Kavanaugh could be just as bad. Such decisions could impact national security as a more divisive America might be more vulnerable to ambitious foreign powers. I consider Trump as a threat to America's national security.