The Most Partisan Court

In 1937, President Franklin Delano Roosevelt (a Democrat) took to the most important media form of the day (radio) to castigate the Supreme Court for blocking many of his New Deal programs designed to ease America out of the Great Depression. He argued that the justices had to be replaced by younger ones more attuned to current economic problems. He said that we needed to “save the Constitution from the Court.”

Soon thereafter, Justice Owen Roberts, a Republican, changed his mind in a few important cases (often called the “switch in time that saved nine”), and FDR’s plan was no longer needed.

Less than twenty years later, a Supreme Court that had nine Democrats stopped President Harry Truman (a Democrat) from seizing the nation’s steel mills in what he called a national emergency in one of the most important cases in American history.

Since that time, and until quite recently, the United States Supreme Court has, to varying degrees, issued decisions both parties could celebrate and/or criticize. The Warren and early Burger Courts, noted for landmark liberal decisions, were made up of a mix of Republicans and Democrats. The 7-2 majority decision in Roe v. Wade included four Republicans, and when that decision was partially affirmed in 1992, there were seven Republicans on the Court.

Even the conservative Rehnquist Court issued a number of liberal decisions, such as several gay rights opinions, thanks to Republican Justice Anthony Kennedy, and affirmative action cases thanks to Republican Justice Sandra Day O’Connor.

Those days are gone, and now the Roberts Court may be the most partisan Court in American history. Constitutional law in the most important cases now looks just like a Republican Party platform.

The Dobbs decision overruled over fifty years of precedent and returned the issue of abortion to the states and potentially Congress (admittedly, a result this author long advocated for despite being radically pro-choice although I’d rely on deference not ancient history to support that result).       

The Bruen decision greatly strengthened Second Amendment rights by adopting a purely historical test for the evaluation of gun regulation efforts. Lower courts are struggling to apply this new and never-before-used legal framework in gun regulation cases.

In 2003, colleges and universities could use racial preferences in admissions if those schools satisfied the justices' (read Justice O’Connor’s) test for affirmative action, and most universities did. Two years ago, the Court effectively ended affirmative action at most public and private universities (except for an unexplained exception for public military academies).

In 2005, the Establishment Clause of the First Amendment still had force if the issue concerned religious symbols on government property, the funding of religious schools with tax dollars, and prayers at school and government events.

Only twenty years later, the Roberts Court has completely abandoned the Establishment Clause as a limit on government power in cases upholding exclusively Christian prayers at legislative meetings, a huge cross on public property, and allowing a coach to pray at the 50-yard line after high school football games (surrounded by students).

In 2005, the Court rarely used the Free Exercise clause to strike down laws because of the landmark Smith decision, written by Justice Antonin Scalia, which adopted a narrow view of the clause. After numerous cases in which the justices used the clause aggressively to overturn state laws regarding the funding of religious schools, this term the Court used it to require public schools to give parents a right to take their children out of classes the parents object to on religious grounds. This super-charging of the Free Exercise Clause will cause enormous disruptions in public schools (as Mike argued on Monday).

While the Rehnquist Court was no friend to those seeking to prevent the imposition of the death penalty, the Roberts Court has taken hostility towards persons challenging capital sentences to outrageous levels, including allowing (what is effectively) the torture of people being put to death through lethal injection and imposing enormously difficult procedural bars on claims of ineffective assistance of counsel and other defects.

And, finally, in voting rights cases and controversies involving presidential power, the Court has all but adopted the Federalist Society’s and GOP’s version of the Fourteenth Amendment for the former and the unitary executive theory for the latter.

The Roberts Court has not done everything the GOP wants (yet). Same-sex marriage is the most prominent example and the Affordable Care Act, while wounded, still exists (at least for now). But the two cases protecting the rights of gays and lesbians to marry were decided before the beginning of the 6-3 supermajority the Republicans now have on the Court thanks to the GOP’s smashing of nomination norms in both 2016 and 2020. And the fate of the ACA is anything but certain. The GOP Justices have plenty of time for those issues as well.

We will see.

--Eric Segall