What Matters at the SCOTUS and for Constitutional Democracy?

by Michael Dorf

Tomorrow I will be speaking on a series of panels at the 19th annual Practicing Law Institute (PLI) Supreme Court Review session in NYC, with simulcasts in various locations as well as a webcast. I have been a panelist at this event since its inauguration and am, as always, eagerly looking forward to it. In addition to returning panelists Erwin Chemerinsky, Joan Biskupic, Burt Neuborne, Ted Shaw, Sherry Colb, Marty Schwartz, Leon Friedman, and myself, this year we add Judge Sandra Ikuta. (Although co-organizers Chemerinsky and Schwartz always ask us to provide fair accounts of the Court's work, the lineup slants liberal, so they make sure to include at least one recognizable conservative. Last year we had Judge Jeffrey Sutton and Jeffrey Wall, who is now acting Solicitor General. This year Judge Ikuta will be doing the work of the two of them!)

The day is organized around various topic areas and the cases the Court decided in each topic area. I'm responsible for presenting the immigration cases, including the Travel Ban case, as well as a couple of cases on the "Business Interests and Civil Litigation" panel. I'll also have opportunities to comment on the various other cases that my fellow panelists present on these and other panels. The day begins with an overview, which is something of a free-for-all. As advertised in the schedule, one topic that will no doubt get a fair bit of attention is the impact of Justice Gorsuch. I'll say a couple of words about that--the exact couple of words will be "extremely conservative"--but I intend to use some of my time during the opening panel to highlight the threat to constitutional democracy posed by President Trump.

Every year I use a few seconds of my time on the overview panel to make the point that, notwithstanding the appeal of gathering yearly to examine the past Term and preview the coming one, the natural unit of analysis for the Court is not the Term. It's something more like the period of time during which any nine given justices sit together. Even then, there can be movement without a change in personnel. One or more justices might evolve in his or her views--as Justice Blackmun seemed to drift leftward after Roe v. Wade and Justice O'Connor seemed to move similarly following Bush v. Gore. Or external events may transform the docket in a way that brings about new lines of cases (like 9/11 and the Bush administration's response did in the first decade of the current century).

The addition of a new justice invariably changes the Court in important ways, although sometimes the new pattern is not immediately apparent. If we think of Justice Gorsuch as replacing Justice Scalia, then the Court hasn't really changed much. Justice Kennedy remains the median Justice on nearly every important issue. However, seeing the addition of Justice Gorsuch in that way overlooks three other perspectives.

First, and most obviously, the long period of an eight-justice Court means that the addition of Justice Gorsuch moved the Court's median from the midway point between Justices Breyer and Kennedy to Justice Kennedy himself.

Second, it is not obvious that the baseline should be either the nine-justice Court that existed prior to Justice Scalia's passing or the eight-justice Court that followed. We might think that the proper baseline is the hypothetical nine-justice Court that would have existed had Republicans not gotten away with denying Judge Garland a hearing. Swapping Gorsuch for Garland moves the Court's median from Breyer/Garland to Kennedy.

Third, even taking Scalia as the baseline, Gorsuch has moved the Court to the right, because Gorsuch is more conservative than Scalia was. Justices Gorsuch and Thomas voted identically in 100% of the cases in which Gorsuch participated. No other pair of justices voted together that frequently this past Term. By comparison, in Justice Scalia's last Term on the Court, he and Justice Thomas were fully on the same page in 82% of cases. In Justice Scalia's last full Term, he and Justice Thomas were fully on the same page in only 57% of cases. When Justices Scalia and Thomas disagreed, Thomas typically was further to the right. Although the 17 cases in which Justice Gorsuch voted are a small sample, the preliminary evidence strongly supports the hypothesis that he is at least as conservative as Justice Thomas. What's more, on the most ideological cases, Thomas and Gorsuch appear to be dragging Justice Alito further to the right as well.

Put simply, the addition of Justice Gorsuch has normalized Justice Thomas. Instead of being by himself beyond the far-right fringe, Thomas and Gorsuch, often joined by Alito, now constitute a multi-justice bloc on the Court's right. That may not be immediately apparent because Justice Kennedy remains the median justice, but should President Trump (or a President Pence in the event that Trump leaves office prematurely) have one more appointment, Chief Justice Roberts will become the median justice. Two more appointments would make a now-further-to-the-right Alito the median justice.

All of that remains a matter of speculation (and dread) for now. Yet the most pressing question may not be "how far to the right will the Supreme Court turn?" but "will the U.S. long remain a constitutional democracy?".  In addressing that question for the PLI audience tomorrow, I'll raise some of the issues I raised in a post last week discussing the lessons we can learn about the fragility of constitutional democracy from recent events in Poland, Pakistan, and Venezuela. I'll add Hungary, Turkey, and the Philippines to the list of disturbing templates.

My bottom line in discussing the threat to constitutional democracy will be something like this: Recent signs of resistance to President Trump by Republican Senators are welcome, but they must be sustained. It is relatively easy to break with a president who has record-low approval ratings. The real test may come if Trump's poll numbers rebound--perhaps in response to a foreign threat or terrorist incident. At that point, we will have reason to fear that the pattern we saw during the 2016 campaign and for most of Trump's presidency will re-emerge: GOP elected officials will mouth disapproval of whatever outrageous thing Trump has said or done but then quietly support him. If such support continues for too long, then a move by Trump to entrench his power--along the lines of those taken by the authoritarians around the world whom he so admires--could succeed for lack of sufficiently powerful political opposition. And by the time Republicans who believe in democracy wake to the threat, it could be too late. Should all of that happen, we will have much worse to worry about than a Supreme Court in which Samuel Alito is the median justice.