What do Liberals Do Now (About the Supreme Court)?

By Eric Segall

On Friday, May 13, I wrote a blog post (with a somewhat heavy heart) criticizing two of the finest constitutional law scholars in the country who have also been friends and mentors to me. Both Mark Tushnet and Erwin Chemerinsky had written essays encouraging folks on the left to both imagine and plan for the future of a Supreme Court dominated by a liberal majority. For example, in The Atlantic, Erwin wrote about how wonderful it would be if a future Court made abortion rights more secure, allowed for more expansive affirmative action, cut back on the scope of and maybe even overturned Citizens United, protected voting rights more vigorously, and end the death penalty once and for all. On his Blog, Mark went further, arguing that liberals and progressives should compile a list of cases that should be immediately overruled (the likely targets being many of the cases listed by Erwin), recognize that the lower courts are staffed more by Democrats than by Republicans, and advocate “aggressively liberal” arguments.

My response to these and other similar essays was that liberals and progressives should be careful about what they ask for when it comes to our highest Court. Among my concerns was that: 1) the Court’s essential job of enforcing an old document rarely leads to progressive decisions; 2) even when the Court does try to force needed progressive change, it usually (not always) fails; 3) while the Court has trouble steering the Country to the left it has quite effectively and repeatedly stopped needed change over the course of its history; and 4) as a matter of principle (not partisan politics) the Court shouldn’t exercise aggressive judicial review on behalf of either the left or the right.

I concluded my post by saying that, notwithstanding the possibility (then we all thought the probability) of liberals seizing control of the Court, “we should continue to, as Erwin did in his most recent book, make the case ‘against the Supreme Court’ and also argue, as Mark has, that we should ‘take the Constitution away from the courts’ because we are all better off when unelected, life-tenured judges only second guess the judgments of other political officials when absolutely necessary or when the case for such invalidation is obvious and clear.”

Well, given the results of the election, the proverbial rooster has come home to roost. On Monday, noted libertarian scholar Randy Barnett published a long blog post using Mark’s very words to suggest what libertarians and conservatives should do and not do given that the liberal “constitutional bullet has been dodged.” Randy and I have had our minor skirmishes over the years but his essay should be read by all those interested in the Court and constitutional law.

Randy’s main piece of advice, consistent with his scholarship over the years, is that conservatives should advocate a “fearless originalist constitutionalism that adhere[s] scrupulously to the text of the Constitution rather than the texts of [Supreme Court] decisions.” He says that “Tushnet was right in principle…the law of the Constitution should take priority over the mistaken rulings of previous justices. What Tushnet and I disagree about is what the Constitution means. He thinks it means progressive results; I think it means what it says. If …court decisions were–in Tushnet’s words–'wrong the day they were decided,”' then they should be reversed and replaced by the original meaning of the Constitution itself.” I don't think Mark believes the Constitution itself "means" anything in the sense Randy suggested but that is only a quibble.

Randy was careful to argue that he did not think the Court should casually discard stare decisis. Instead, the principles of incorrectly decided cases should not be extended to new facts. Nevertheless, he also wrote that it “is high time for conservative justices to follow Tushnet’s advice for progressive judges and reconsider cases they know full well to be in conflict with the Constitution’s original scheme (as amended). If they conflict with the original meaning of the Constitution, these cases were 'wrong on the day they were decided.' "

The rest of Randy’s essay suggests that the Justices should pay much more attention to the separation of powers and federalism, recognize that the Ninth Amendment and Privileges or Immunities Clause protect unenumerated rights, beef up the rational basis test for economic legislation, and remember that judges should stay out of the culture wars (Randy does say that he strongly supports “the fundamental liberties and equal rights of all, including LGBT. But … also … the liberty of those with different moral and religious views.”).

In other words, Randy thinks the Court should enforce a libertarian Constitution, consistent with Randy’s well thought out and long held views of a good society.  To be fair, Randy also wrote that “I strive as best I can, however imperfectly, to interpret the Constitution in good faith, subject to the same confirmation biases as everyone else.” I believe him, and nothing that follows should suggest otherwise though he and I may disagree on how substantial a role “confirmation bias” plays for all of us who write about the Constitution and the Court.

Since Mark referred to Justices Brennan and Marshall as good role models for future Justices, Randy identified his favorite Justices as the first Justice Harlan and, not surprisingly, Justice Thomas, for his willingness “to put the original meaning of the Constitution above previous decisions of the Court.” Randy also suggested that Thomas “could use some help.”

Randy’s essay was effective in large part because he used Mark’s own words as a road map (and a warning) for future conservative and/or libertarian judges and Justices. After all, continuing with my animal clichés, what is good for the goose is good for the gander. If a liberal Court should rewrite constitutional law to further the policy aims of Erwin and Mark (all of which I agree with), why shouldn’t a conservative or libertarian Court do the same for Randy and others who support similar views. Although Randy argued that he doesn’t like “politicizing judicial decisions” and that “[c]onservative judges should remain above politics in their decision making,” I hope he won’t be offended when I humbly suggest that both the observation and the suggestion are just a tad naïve, maybe even inching up to Pollyanna.

It is now time that I have to reluctantly say an “I told you so” to my liberal and progressive friends, not to toot my own horn but to make a serious point. While most liberal academics were getting excited about the prospects of a new Supreme Court aggressively pushing a left/liberal agenda, I argued that “liberal scholars should take a deep breath.” I did not counsel hesitation because I thought Trump would win the election, I did so because a strong, aggressive Court is not in the best interests of either the left or the country.

The most persuasive justification for the doctrine of judicial review is that laws that conflict with the United States Constitution are null and void and someone other than the elected officials who make and implement the law must decide when there is such a conflict. This idea makes perfect sense when it comes to either clear constitutional text or more amorphous text that has undisputed history. An example of the latter would be the First Amendment’s obvious ban on prior restraints. But constitutional cases involving clear text or history (as applied to the relevant dispute) are few and far between. 

When the Justices issue national rules in the absence of clear and obvious justifications, which they do all the time, we are allowing unelected, life-tenured lawyers to resolve many of our most important social, cultural, political, and economic issues. That is not what Alexander Hamilton had in mind when he wrote in Federalist No. 78 that judges should only invalidate laws that are at an “irreconcilable variance” with the Constitution. More importantly, that is not a good system for the rule of law, for either the left or the right.

We of course have been living under a different regime in which the Justices regularly impose their will on the American people without any reasonable argument that the overturned law or political decision is at an “irreconcilable variance” with the Constitution. Is there any chance that regime could change to one more deferential to other political actors across the board? Probably not. But a golden opportunity to seriously discuss structural changes to the Court was missed before the election, when for the first time in American history, the Court was evenly divided among partisan lines and liberal/conservative lines.

I became an outcast from my own liberal American Constitution Society (I am a Georgia Board member) for advocating on this Blog, in the New York Times, and many other outlets, that the Senate should adopt procedures to fix in time an evenly divided Court. My detailed proposal was not partisan in any way, but given that everyone was sure we’d have a liberal Court for a long time after the election, it was a perfect moment for liberals to sympathize with the plan. In light of the statements made by GOP Senators (like Ted Cruz) and conservative commentators (like Ilya Shapiro) about freezing the Court at eight, conservatives may have even gone along believing that Hillary would prevail. But it was not to be.

In the long run, the Justices will not be reined in by theoretical pre-commitments like originalism (sorry Randy), a general preference for minority rights, or any other grand interpretive theories. Scholars have been trying for over half a century to devise such theories that respond to Alexander Bickel's counter-majoritarian difficulty. But the Justices will inevitably decide cases just as Erwin and Mark have always said they would--according to their own values. What is needed is major structural reform. Maybe I am naive to think it will ever happen, but I don't think the answer is to stop fighting. 

So, the question for liberals and progressives, is what to do now? My answer is the same that it has always been. Argue for a deferential Court that acts with great humility and caution even if it means we have to give up on attaining rights and freedoms that we (left/liberals) value in the courts. Those rights will be much more secure if won in the legislative arena anyway. 

Some may object (in fact Mike did object when he saw an earlier draft of this post) that we will need the Court more than ever given Trump's potential to trample our civil and political rights. I do not disagree that this is a grave threat, but I have two responses. First, from the Alien and Sedition Acts to Jim Crow, to the Palmer Red Raids, to the imprisonment of US citizens of Japanese descent during WWII, the Court has rarely stood up in times of real crisis. 

Second, I do not call for the complete abdication of judicial review, and never have. I do argue that where reasonable people can differ over the Constitution's meaning, the Justices should not interfere. If Trump acts in the ways we fear, I would be in favor of whatever probably futile actions the Court would take to protect our most fundamental liberties.

Erwin was right to make the case against the Supreme Court in his latest book, and Mark was right to argue in the 1990’s that constitutional scholars should emphasize the Constitution outside the Courts. I deeply regret that the left may have to learn those lessons the hard way. Again.