If Changing Judges Changes Law, Is the Supreme Court a Court of Law?

 By Eric Segall

Retired Judge Richard Posner once said that, “if changing judges changes law, then it is not clear what law is.” There can be no dispute that the Supreme Court of the United States changes law all the time and on extremely important questions that affect all fifty states and over 300,000,000 people. These changes most often occur without any amendments or newly discovered historical materials. I demonstrate this claim below and then offer a few observations about what it all means.

One of the biggest (and most laudatory) changes in constitutional law doctrine was the move from Plessy v. Ferguson's separate but equal doctrine which allowed for segregation in schools and other public facilities to Brown v. Board of Education that led eventually (took a long time) to the end of official public segregation. This change, of course, was one of the most dramatic and far reaching in American history. This change was required because in the late 19th century the Supreme Court tortured the meaning of the 14th Amendment to give more protection to businesses and employers than to the newly freed formerly enslaved people. 

What many consider to be perhaps the second most important change in the law was the move from judicial second guessing of economic legislation during the so-called Lochner era to a long period of almost complete deference to economic legislation that lasted until the Roberts Court (which has somewhat resurrected the doctrine using the first amendment). The New Deal would not have been possible without that shift. Although one Justice (Owen Roberts) straddled the change, it was a wholesale changing of the justices on the Court that led to the real period of deference that lasted almost 75 years.

Until the Court decided National League of Cities vUsery in 1976, Congress' Article I powers were not limited by notions of state sovereignty. In Usery, the Court held that, even when exercising an enumerated power, Congress is limited by a non-textual principle that it may not interfere with traditional state functions. Justice Brennan in dissent noted that this rule disregarded law that had been settled since the time of John Marshall.

That made-up rule lasted only eight years. In Garcia v. United States, the Court held that the commerce clause power was plenary and not subject to non-textual limitations of state sovereignty. But then, when changes to the Court occurred, the justices back-tracked again in a series of cases to adopt a non-textual and ahistorical rule that Congress, even when acting pursuant to an enumerated power, cannot commandeer state legislatures and state executives (but can commandeer state courts, which is bizarre). This back and forth on limits on enumerated powers occurred despite a text two centuries old and no new historical discoveries.

From 1971-2000, the Supreme Court was all over the map on what support local and state governments and the federal government could provide to private religious schools. A long series of cases resulted in incoherent doctrine where textbooks and diagnostic tests were allowed but most other support, including all educational materials other than textbooks, violated the establishment clause  

All of that changed in 2000 when a different set of justices ruled, correctly in my view, that secular materials and support provided by the government to public and non-religious private schools could be given to religious schools as well. Recently, the Roberts Court has gone full circle and held that, if the state supports private non-religious schools, it must also support religious schools despite valid establishment clause concerns articulated by the states. This is a 180-degree major shift and came about only because the people on the Court changed.

As is well-known, for most of our history, the Second Amendment did not apply to the personal use of guns, and the Court said so in 1939. In that case, the justices said that "in the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

That all changed, of course, in 2008 when the Court ruled 5-4 that the Amendment applied to self-defense in the home (and probably hunting). Of course, that change, along with many others, occurred only because Justice Marshall was replaced by Justice Thomas in 1991. Changing judge changes law.

Between 1973 and 1992, pursuant to Roe v. Wadethe right of a woman to terminate a pregnancy was fundamental and could not be abridged prior to viability. After 1992, the law changed to allow states to regulate abortion at any time during pregnancy as long as the state did not place an undue burden in the way of women seeking abortions, That was a major difference which allowed many red states to effectively put abortion clinics out of business. This June, this rule is likely to change again. Roe was 7-2, Casey was 3-4-2, and the decision this June will likely be 6-3 or 5-4. Nothing in the relevant text or history of the Constitution has changed regarding this issue.

Getting tired yet?

In 1869, the Supreme Court held that Congress could not make paper money legal tender for past debts because the Constitution only mentions "coin." This decision was huge and created much controversy. Shortly after the case was announced, there were two vacancies on the Court and President Grant filled them with Republicans who everyone knew would vote to overrule the case. One year later, in The Legal Tender Cases, the Court reversed itself. Nothing changed except for the two new justices. These cases were front-page decisions of incredible importance.

In 1989, the Court held 5-4 that Congress could use its commerce clause powers to abrogate a state's sovereign immunity under the Eleventh Amendment. This important decision allowed Congress to hold states liable for money damages for environmental harm they caused. In 1991, as mentioned before, Justice Thomas replaced Justice Marshall changing the balance of power on the Court. In 1996, the Court reversed course and took away this important power from Congress. 

I could go on and on. The Court's 4th-8th Amendments jurisprudence has changed dramatically over the years, as has the Court's first amendment doctrines. A glaring example of the latter is the Court's move, mostly through the work of Justice Lewis F. Powell, from giving commercial speech little or no protection under the Constitution to almost full protection. The Roberts Court has also substantially changed the law regarding campaign finance regulation.

In short, the Court has changed course dramatically on the interpretation of virtually every litigated constitutional provision. Sometimes those changes occurred because of the passage of time and societal evolution but most often they occurred simply because the justices on the Court changed. There can be no reasonable debate that changing Supreme Court justices changes law. That is, after all, why our broken confirmation process is so combative and partisan.

I do not hold myself out as a legal philosopher, so the following observations are driven by my forty-year study of the Supreme Court from the perspective of a lawyer and constitutional law professor.

It had always been true that statutory and constitutional law inevitably has gaps that leave judges discretion to decide as they see fit. We hope they will take prior law and precedent into account and not make all-things-considered decisions. But when it comes to Supreme Court-made constitutional law, the gaps are immense. The text that gets litigated is almost always hopelessly imprecise, the history contested, and the justices are not bound by prior case law. Additionally, many of the cases the Court decides have national implications and are hugely important. Given that amount of discretion, it is not surprising how often changing judges changes law.

The bigger question is to what degree the thing we call "law" matters to the Supreme Court. The justices have no purse nor sword in the famous words of Alexander Hamilton, so they know they can't enforce their decisions unless the other branches recognize the legitimacy of their opinions, which so far throughout American history they mostly have. But is that constraint a legal one related to law or a practical one informed by public opinion and the Court reading political tea leaves? I will let the reader ponder that question.

If the justices were officially empowered to make all-things-considered decisions it would be hard to argue that law constrains them. It is my view that the justices in fact act that way with the only constraint being their need to preserve their own legitimacy. If I'm right, then law plays at best a minimal role in Supreme Court decision-making. 

The reality is that changing justices as an empirical matter has dramatically changed law over and over and over and on major issues that define our country and who we are as a people. That reality should make us all think more carefully about whether the Court is really a court of law or just a panel of people with enormous political authority and influence. If it is the latter, We the People should consider making major changes to this governmental institution no matter where one sits on the political spectrum.