What's Different About the Roberts Court

In a guest post on this blog yesterday, Professor Sobkowski critiqued a NY Times op-ed in which Jesse Wegman quoted many of my fellow liberal constitutional law professors describing a "crisis" in the teaching of our subject. What crisis? As a substantive matter, the sharp and sudden turn to the right by SCOTUS since conservatives gained a super-majority; procedurally, the conservative super-majority's willingness to jettison precedent and offer mutually inconsistent rationales for ideologically driven results.

When I read the Wegman op-ed, I had much the same reaction as Professor Sobkowski: Is this really a crisis? And how--other than the fact that this Court has different values--is this any different from what the Warren Court did? I suspect that conservative constitutional law professors from the mid-1950s through late 1960s (and into the 1970s during the early Burger Court) thought that there was no less a crisis. Professor Sobkowski gives voice to that reaction in considerable detail. I agree with his analysis of Wegman's core claim.

Rather than simply pile on, here I'll offer a few thoughts about why one might nonetheless think that the Roberts Court is different from the Warren Court in key respects. Before coming to my main points, I'll also offer quibbles about a couple of points Professor Sobkowski makes.

Quibble 1"Liberals and progressives largely declined to criticize the Warren Court," Professor Sobkowski asserts. That does indeed encapsulate the conventional wisdom, but it's true mostly in retrospect. That is to say, by the mid-1970s, the liberal professoriate had come to accept and indeed to glorify the work of the Warren Court. But in real time, things were rather different.

For example, Herbert Wechsler is now remembered as a conservative because he famously and obtusely wrote in the 1959 Harvard Law Review that he regretted his inability to justify Brown v. Board of Education on the basis of "neutral principles." But Wechsler was, for nearly all of his career, a liberal. He was the principal author of the Model Penal Code, which was a reform effort. Even after his Neutral Principles blunder, Wechsler remained a liberal. He successfully argued New York Times v. Sullivan for the New York Times and remained committed to liberal causes in the political realm. But as the heir to Felix Frankfurter in his advocacy of judicial restraint, Wechsler (like Frankfurter) was skeptical of many of the most aggressive exercises of judicial review by the Warren Court.

Alexander Bickel--whom Professor Sobkowski rightly lists alongside Frankfurter--was also a political liberal but a critic of aggressive judicial review. Wechsler and Bickel were hardly alone among the liberal professoriate. As Laura Kalman explained in chapter 1 of her terrific book The Strange Career of Legal Liberalism, although most liberals quickly came around to trying to justify Brown in response to the critique from Wechsler (and in the face of "massive resistance" on the ground), other decisions of the Warren Court were frequently the targets of proceduralist criticism from the liberal legal professoriate.

I nonetheless call this clarification a quibble, because, with the passing of the dominance of legal process school theorists by the mid-1970s, a hagiographic view of the Warren Court did emerge, even if it wasn't quite as universal as Professor Sobkowski suggests.

Quibble 2: Professor Sobkowski laments: "The [Warren] Court was a constitutional rubber stamp for the Great Society’s political agenda." I do not understand why Professor Sobkowski thinks this indicates judicial overreach. The overall thrust of his charge is that the Supreme Court for much of its history--certainly including under Chief Justices Warren and Roberts--has been too willing to impose its views on the nation in the name of the Constitution. In other words, Professor Sobkowski would prefer a less activist Court. But a Court that rubber stamps the political agenda of elected officials is an extremely non-activist Court. I would have thought Professor Sobkowski would like a Court that rubber-stamped, i.e., did not rule unconstitutional, the outputs of the political process.

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So much for quibbling. On to the ways in which the Roberts Court could be thought to be different from the Warren Court.

How the Roberts Court is Different Part 1: Professor Sobkowski portrays the Roberts Court as a kind of mirror image of the Warren Court. Viewed in the broadest perspective, that's fair. The Warren Court overruled precedent in order to find a basis in the Constitution for liberal results; the Roberts Court overrules precedent in order to find a basis in the Constitution for conservative results. But viewed more closely, there is a key difference.

As John Hart Ely argued at length in the articles leading up to and collected in Democracy and Distrust, the driving force behind Warren Court activism was the shoring up of democracy through what Ely called representation-reinforcing judicial review. True, there were some Warren Court decisions espousing substantive values. The school prayer cases and Griswold v. Connecticut are prominent examples. But the right's bĂȘte noire--Roe v. Wade--was a Burger Court decision, as was its compromise ruling on affirmative action, Regents of the Univ. of California v. Bakke. Ely paints with a broad brush but he is also broadly correct that most of the Warren Court's key decisions can be understood as correcting democratic defects. 

The Roberts Court is the mirror image of the Warren Court, but it's a funhouse mirror image. Whereas Warren Court activism was generally in the service of democracy, some of the most egregious Roberts Court decisions--gutting the Voting Rights Act, invalidating bipartisan campaign finance regulation, rendering challenges to partisan gerrymandering impossible, and much more--seem designed to make government in the United States less democratic. The core critique of judicial activism is that unelected judges lack a democratic pedigree and thus shouldn't impose their values as against elected officials. That critique loses much of its force when judicial activism makes the overall political system more democratic (as one can plausibly say about much of the Warren Court's judicial activism). Conversely, the critique gains force when, in addition to imposing its values, the (Roberts) Court does so in a way that makes the system overall less democratic.

How the Roberts Court (and Right-Wing Judicial Activism Generally) is Different Part 2: Professor Sobkowski is absolutely correct that the right's insistence on cloaking its ideological judgments in the guise of formalism--i.e., originalism in constitutional interpretation (and textualism in statutory interpretation)--facilitates the conceit that when courts reach ideologically liberal results in constitutional cases the judges or justices are imposing their values on the text but that when they reach conservative results they are merely following the law. But Professor Sobkowski then makes a category error in the service of drawing a false equivalence. He writes: "Originalism allows the Roberts Court to clothe its decisions in the language of the law, just as the Warren Court did with appeals to 'liberty,' 'equal protection,' and 'due process.'"

All justices--whether liberal or conservative--purport to be construing the constitutional text, including such words as "liberty," "equal protection," and "due process." Conservatives then (frequently) make the further claim that in pouring ideologically right-wing content into these open-ended terms, they are simply giving effect to the "original public understanding" or some other source that is external to the Justices' own values. Liberals rarely make such claims--except perhaps when they are up before the Senate Judiciary Committee and have to pretend to be formalists.

So there is an asymmetry here. Conservatives lie and say (or what is arguably worse, perhaps actually believe) that they are just following the external legal materials when they make value judgments based on open-ended texts, whereas liberals often acknowledge the need for a substantial element of subjective judgment.

How the Roberts Court is Different Part 3: There is no doubt that the Warren Court was ideologically liberal, but it was not partisan. Its two leaders--Chief Justice Earl Warren and Associate Justice William Brennan--were appointed by Republican President Dwight Eisenhower. Democratic President Franklin D. Roosevelt's appointees Felix Frankfurter and Hugo Black were in dissent from key Warren Court precedents (although they also frequently disagreed with one another). Those "impeach Earl Warren" signs took on a partisan Republican valence only after Richard Nixon successfully launched the realignment project with his Southern Strategy.

By contrast, the Roberts Court is not just ideologically conservative but often seems to be partisanly so. The most glaring example is a Rehnquist Court decision--Bush v. Gore--but Roberts hardly gets a free pass there, given that he, along with Justices Brett Kavanaugh and Amy Coney Barrett, was part of the Bush legal team in the case. Meanwhile, although the Roberts Court, to its credit, rejected some of the most outrageous assertions of authority by Donald Trump during his Presidency and in the aftermath of the 2020 election, it is not difficult to find examples of the Roberts Court pursuing the interests of the Republican Party as such.

This sort of not-just-ideological-but-partisan division is not entirely unprecedented. The Federalist-packed Marshall Court had an arguably partisan agenda too. But we do seem to be in different territory from where we were during the Warren Court--and the reason is relatively easy to identify. In the mid-twentieth century, the Democratic and Republican parties were each broad coalitions that overlapped considerably, with Dixiecrats often to the right of midwestern and northeastern Republicans. Because the parties have become more sharply defined, ideological divisions now map readily onto partisan ones.

That account could be construed to mean that the partisanship of the Roberts Court is a both-sides phenomenon that simply reflects the greater distance between Democrats and Republicans on most issues. However, that is not what has happened. As I argued in a recent Verdict column, we have witnessed asymmetrical polarization caused mostly by Republicans . . . not to put too fine a point on it . . . losing their minds. 

To be sure, and notwithstanding trolling by Justice Alito, the conservative super-majority's rhetoric is generally less inflammatory and certainly not as deranged as the conspiracy theories and worse that emanate from Donald Trump and his backers. But as Trump and Trumpism have taken over the Republican Party, the difference between partisan Republicanism and Trumpism has become less significant.

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Bottom Line: I agree with Professor Sobkowski that there isn't some unprecedented crisis in teaching constitutional law due to the fact that the Supreme Court infuses the Constitution with its own values. But I disagree with his suggestion that people who are concerned about anti-democratic institutions of American government should focus much on the Court. The republic has long survived and even thrived notwithstanding the countermajoritarian difficulty. The reasons to worry about the Supreme Court and democracy are that: (1) the Roberts Court has propounded a series of representation-thwarting doctrines; and (2) it has done so in the service of a party that is now profoundly anti-democratic.