National Journal | July 30, 2005
IN JUNE, conservatives howled when the Supreme Court upheld the right of New London, Conn., to condemn an entire neighborhood in order to make room for private development. House Republicans, in particular, took turns denouncing the Court's decision in Kelo v. New London. Among them was Rep. Virginia Foxx, R-N.C. In her monthly column on NCRepublicans.com, she called the ramifications of the ruling "truly horrifying" and declared, "The Supreme Court seems to be claiming that the government can confiscate private property for nongovernmental use, at will, under the veil of eminent domain." Her conclusion: "The Supreme Court must be held in check."
There it went again, that activist Court, trampling on the democratic process, legislating from the bench. Except that it had done no such thing. In the New London case, the Court pointedly deferred to the political branches of government, ruling that it had no business second-guessing Connecticut's elected officials. Conservative property-rights advocates were upset, it appeared, because the Court did not legislate from the bench.
Political partisans of the Right and Left alike view the retirement of Associate Justice Sandra Day O'Connor as a turning point for the Supreme Court. After all, she was often the swing vote in 5-4 decisions, and as conservatives go, she was both moderate and unpredictable. In John G. Roberts Jr., Bush has nominated a judge about whom little is firmly known, but many observers expect him to be at least somewhat more reliably conservative than O'Connor.
Chief Justice William Rehnquist is 80 years old and in declining health. He is the Court's longtime anchor on the right, and so his eventual replacement with another conservative seems unlikely to tilt the balance. But Associate Justice John Paul Stevens, dean of the Court's liberals, is 85. As far as anyone knows, he is healthy and has no plans to retire, but the actuarial tables suggest that Bush may get the opportunity to appoint Stevens's successor, too.
No wonder that partisans on both sides speak as if the millennium is at hand. Conservatives expect, and liberals dread, that a new era of aggressive jurisprudence is soon to begin. "Our hard-won rights will be in jeopardy if [Roberts] is confirmed," warned Kim Gandy, the president of the National Organization for Women, in a statement issued minutes after Bush announced his choice. The Economist paraphrases William Kristol, a conservative pundit and strategist, as arguing that conservatives now "have a chance to implement a judicial revolution that will match their economic and foreign-policy achievements."
Or not. A closer examination reveals a more complicated story. Legally, incremental change seems more likely than revolution, continuity more likely than reversal. Politically, conservatives may be in for a surprise: The more conservative the Court, the more divided the conservatives.
The Revolution That Wasn't
IF BUSH gets three appointments during his eight years, that will be a lot. But President Nixon had four, all between 1969 and 1972. "In the modern era," says G. Edward White, a legal and constitutional historian at the University of Virginia School of Law, "there have been expectations that these nominations would result in radical change in the direction of the Court, and it was taken for granted this would happen when Nixon had his nominations." A couple of books published in the early 1970s argued that the "Nixon Court" would transform the legacy of the Warren Court.
"In fact, that didn't happen," White says. "The only area in which one could argue there were changes in the predictable direction -- that is, to a more conservative approach -- was in the area of criminal justice, and even there, the record was mixed."
The 12 years of the Reagan and George H.W. Bush administrations saw the appointment of five justices (O'Connor, Antonin Scalia, Anthony Kennedy, David Souter, and Clarence Thomas). Four of these justices were known to be conservative, two of them fiercely so. Rehnquist was elevated to chief justice. Still the revolution did not come.
For a while, it seemed imminent. In the late 1980s and early 1990s, as today, many conservative activists thought that their moment was at hand, at least in a couple of key areas. In three cases -- Nollan v. California Coastal Commission (1987), Lucas v. South Carolina Coastal Council (1992), and Dolan v. City of Tigard (1994) -- the Court ruled that various government land-use restrictions were unconstitutional "takings" and could not be imposed without compensation to the property owners.
Those decisions left some liberals predicting the demise of zoning laws. Then, in United States v. Lopez, the Court in 1995 overturned as unconstitutional a federal law forbidding guns in school zones. The Constitution gives Congress the power to regulate interstate commerce, the Court said, but having a gun near a school was neither interstate nor commercial.
That was the first time in decades that the Court had used the commerce clause to restrict federal power, and the case was followed in 2000 by a decision knocking down parts of the federal Violence Against Women Act on similar grounds. Both cases were decided 5-4, along straight conservative-liberal lines. Liberals feared, and conservatives hoped, that the Court had begun a counter-revolution against federal regulatory power.
But the Court demurred. In a series of cases since 2000, it has firmly limited the reach of its earlier "takings" decisions. In Tahoe-Sierra Preservation Council (2002), Kennedy and O'Connor joined with the Court's more liberal members to slap down the claim that the government's placing a long moratorium on private development is an unconstitutional taking. (The lawyer who won that case was John Roberts.) In May of this year, a unanimous Court found that Hawaii's rent-control regulations on gas stations were not takings. To find otherwise, said the Court in Lingle v. Chevron (the Hawaii case), "would require courts to scrutinize the efficacy of a vast array of state and federal regulations -- a task for which courts are not well suited. Moreover, it would empower -- and might often require -- courts to substitute their predictive judgments for those of elected legislatures and expert agencies." Translation: Unless the government's land-use decisions go way, way overboard, we are butting out.
Nor, said the Court, did its ruling in Lopez imply a challenge to federal regulatory power. In June, by a 6-3 majority in Gonzales v. Raich, the Court pointedly held that the federal government can override state law by banning medical marijuana -- even homegrown marijuana that is never sold and that never crosses state lines. The asserted connection between the federal law and interstate commerce, the justices said, can be indirect and inferential; it just cannot be ridiculous. Translation: Unless the federal government's assertion of power over the states goes way, way overboard, we are butting out.
The Rehnquist Court's most recent years, then, have been a period of consolidation, not adventure. The Court set some outer boundaries on federal power, but within those boundaries, it declared its deference to precedent and to the elected branches.
This is not to say that the Rehnquist Court has been incapable of hurling the occasional thunderbolt. Since 2000, it has struck down state sodomy laws, ruled juvenile capital punishment unconstitutional, and upended some state and federal sentencing rules -- the latter a particularly surprising departure. All of them, indeed, were departures.
More typical was the conspicuous deference to Congress in McConnell v. FEC, the 2003 case in which the Court approved the McCain-Feingold campaign finance law virtually as written, despite that law's unprecedented restrictions on political speech. Or, again, the Kelo decision, in which the Court offended conservatives by deferring to a local government's heavy-handed use of eminent domain. Or the 2003 case of Grutter v. Bollinger, in which the Court, once more declining conservatives' invitation to activism, ruled that racial preferences in university admissions do not necessarily violate the Constitution's guarantee of equal protection.
The decisions in all of those cases angered at least some conservatives on the Court (frequently, Justices Scalia and Thomas), and many in the political realm. Activists on the right hope that the addition of several Bush appointees may at last produce the sea change that seemed so near in the early 1970s and again in the early 1990s. Will it?
Big Tippers
NO ONE knows how a Justice Roberts might rule, or who might ultimately take Rehnquist's seat, and prognostications about the Court are notoriously unreliable. That said, it is informative to survey the jurisprudential landscape for conservative targets of opportunity: big tippers, so to speak.
A "tipper" is a teetering judicial boulder, ready to fall with a push from a new justice or two. To be a big tipper, a decision should be: 1) legally or politically salient and thus of interest to the broad public, rather than just to legal specialists; 2) a constitutional rather than a statutory holding, which Congress cannot override legislatively; and 3) liberal and vulnerable, so that a switch of one or two votes to the conservative side could flip the outcome.
Assume, for argument's sake, that Roberts takes O'Connor's seat and is a more reliable conservative than she. Assume, also, that Bush replaces Rehnquist with another conservative. A potential big tipper would then be an issue that had been decided by a 5-4 majority, where O'Connor cast the swing vote by siding with the liberals.
Interviews with law professors who are specialists in various fields produced a consensus that might surprise many people who take their information from the newspapers: Not many big boulders are ready to tip.
O'Connor was a swing vote. But, says Eugene Volokh, a constitutional law professor at the University of California (Los Angeles), "in 5-4 cases, O'Connor is usually the swing vote to the conservative side. She swings right much more often than she swings left." Asked about the idea that O'Connor often provided a key vote for liberals, Volokh, who clerked for O'Connor, said, "It's called 'wishful thinking.' "
On occasion, of course, O'Connor did swing to the left. The experts point to four recent issues that might tip if Roberts joins the Court (assuming that Rehnquist either remains in action or is replaced with a like-minded conservative).
* Race-conscious affirmative action. The Grutter decision was 5-4, with O'Connor's defection to the liberals swinging the decision their way. Her opinion for the majority upheld the University of Michigan Law School's system of using race as a factor in admissions. In theory, Roberts's vote would be enough to swing the decision back in the next such case.
* "Partial-birth" abortion. In a 2000 case (Stenberg v. Carhart), O'Connor again joined the Court's liberals, this time to strike down a Nebraska state ban on a procedure that opponents call "partial-birth" abortion. (Many who believe the procedure should be legal argue that the term is misleading.) The Court found the Nebraska law unconstitutional because it did not make an exception for the health of the pregnant woman and because its broad language could cover many kinds of abortion.
Roberts, if confirmed, may soon have an opportunity to weigh in on this issue: In July, a U.S. Appeals Court struck down the federal Partial-Birth Abortion Ban Act because it, too, lacks a health exception. A couple of caveats are in order, however: First, the Court has already upheld various restrictions on abortion, such as waiting periods and parental-notification requirements; what is at issue is not whether Congress and the states can regulate abortion, but how far they can go. Second, if the Court does knock down statutes because they lack health exceptions, legislatures can pass new laws that include such exceptions. For both reasons, the stakes are lower than they may seem.
* Campaign finance law. O'Connor's vote with the liberals provided the green light for the new campaign finance regime, and the Court's four other conservatives made no secret of their dismay. With states and Congress building on McConnell v. FEC to enact further restrictions, a flood of litigation will present Roberts with an opportunity to swing the Court the other way. "I'm not sure [that Roberts's presence on the Court] would lead to the decision being overruled," says Bradley A. Smith, a departing member of the Federal Election Commission and an election-law professor at Capital University Law School, "but it would leave it up for grabs."
* Religious displays. In a June decision (McCreary County v. American Civil Liberties Union) that raised religious conservatives' hackles, O'Connor joined the liberals to hold that the prominent display of the Ten Commandments in a Kentucky county courthouse was an unconstitutional endorsement of religion. In a similar case, Roberts might well go the other way.
Here again, a caveat is in order. In a related case, also decided in June, the Court upheld Texas's right to exhibit a Ten Commandments monument on its state Capitol grounds. The difference, said the Court, was that the Ten Commandments display in Texas stood among diverse monuments and so did not signal a special preference for religion. What is at stake in these decisions, notes Michael Broyde, the academic director of the Law and Religion Program at Emory University Law School, is the narrow question of when a religious display or ceremony in the public sector crosses the admittedly subjective line of seeming to be an endorsement of religion. What is not in play is the basic principle of government neutrality toward religion, on which there is broad agreement.
"I don't believe the principle of government neutrality is likely to be challenged in my lifetime, and I'm 41," Broyde says. "Undoubtedly, there will be changes. But the change will be within a narrow bandwidth."
Those four issues are not trivial, but compare them with some of the areas in which scholars see few conspicuous opportunities for change.
* Economic rights. The Court's conservative defector in the New London eminent-domain case was Kennedy, not O'Connor. And regulatory-takings decisions, says Nicole Stelle Garnett, a property-law specialist at Notre Dame Law School, are often decided 6-3, with conservatives sometimes hesitant to second-guess the government. "There seems to be this talk out there that there's going to be a revival of economic liberties," Garnett says. "With all due respect to my friends at IJ" -- the Institute for Justice, a conservative public-interest legal foundation where Garnett once worked -- "I think that's a pipe dream."
* Criminal procedure. Assuming that Bush replaces both O'Connor and Rehnquist, "I don't see any really significant criminal-procedure matters in play," says Richard Garnett, also a Notre Dame law professor. Much of the law governing procedure in criminal cases, he says, is nailed down.
* Civil procedure. Ted Frank, the director of the Liability Project at the American Enterprise Institute, says he can think of no major issues of civil procedure that are ready to tip. "Part of the problem with civil litigation is that the Court is just not taking these cases, so we don't know where we are," he says. "We don't know if there's another iceberg out there." He and others speculate that Roberts's background in commercial law could awaken the Court's interest in the subject.
* Partisan gerrymandering. Again showing deference to the legislative branch, the Court has refused to get involved in challenges to even egregious gerrymanders designed to reduce competition in federal elections. The FEC's Smith notes that the Court's conservatives have formed the majority in these cases, and so more conservatives would probably just pad their margin.
* Discrimination. Charles Shanor, an expert on employment discrimination at Emory Law School, said he doubts that much will change in this field. "I don't see that doctrine as getting more conservative, nor do I see it likely to get more liberal."
If Roberts proves to be more reliably conservative than O'Connor, he will undoubtedly curtail the already-limited opportunities for the Court's liberals to pick off a conservative vote. Liberal victories will be even fewer than today. But no revolution is in sight. Rehnquist is known as an organizer. True to form, the chief has left few loose ends.
Beyond Rehnquist
THE NEXT question is what happens if the staunchly liberal Justice Stevens retires on Bush's watch and is replaced by a conservative. Suppose conservatives enjoyed a 6-3 majority, instead of today's 5-4. More law would be in play then, but so would be more kinds of conservatism.
In his forthcoming book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, Cass R. Sunstein, a University of Chicago law professor, argues persuasively that the standard labels "liberal" and "conservative" obscure more than they reveal when applied to the judicial realm.
Sunstein, instead, divides judicial philosophies into four types. "Perfectionism" seeks to make the Constitution the best that it can be. This is what many conservatives mean by "judicial activism." "Majoritarianism" holds that the Court should defer to the democratic process unless the Constitution has been plainly violated. "Minimalism" is skeptical of broad theories and sweeping holdings, preferring narrow decisions that proceed one case at a time. (In some of his statements evincing distaste for theory-driven judging, Roberts sounds like a minimalist.) What Sunstein calls "fundamentalism," and what most other people call "originalism," seeks to interpret law in light of its authors' intentions.
When Bush and other conservatives talk about judicial philosophy, they speak with one voice in opposing perfectionism, but they embrace all of the other three philosophies as if they were interchangeable. In reality, majoritarianism, minimalism, and originalism are often in tension -- and are sometimes incompatible. "The 'conservative' label gets applied to a whole lot of judicial philosophies," says AEI's Frank, "and not all of them come out the same way on any given case."
Originalists denounced the Kelo holding, for example, because they believe (correctly) that the Founders intended to safeguard private property. Majoritarians, on the other hand, believe that the Constitution delegates most land-use decisions to the democratic process, not to the courts. Minimalists would eschew any categorical ruling, preferring to weigh the particular claims of the New London disputants. All of those approaches qualify as conservative, but any one of them would result in a decision sure to leave many conservatives grumbling.
Now some arithmetic. Liberals hold only four seats on today's Court. This means that every putatively "liberal" 6-3 decision by the current Court must have had the support of at least two conservatives. In other words: If a case was decided 6-3 with Stevens in the majority, in theory it is a candidate to flip once Stevens is gone -- but in practice, it is a case that divides conservatives. In yet other words: In many of these 6-3 decisions, conservative values collided. For example:
* Medical marijuana. This year's Raich decision, which upheld Congress's power to overrule California and ban medical marijuana, was a 6-3 decision written by Stevens, in which two conservatives joined the majority. Among the Court's moderate conservatives, Kennedy split with O'Connor; among the conservative stalwarts, Scalia split with Thomas. Kennedy and Scalia, in the majority, plumped for law and order; O'Connor and Thomas, in the minority, for states' rights. Both are core conservative values.
* Religious accommodation. If the law bans ingestion of peyote, do religious adherents have a right to an exception for sacramental ceremonies? In a 1997 decision (affirming a 1990 holding), the Court said no, with four conservatives voting against the religious exception, and two, Breyer and O'Connor, voting for it. Religious conservatives eagerly expect Bush appointees to favor religious accommodations, but a law-and-order nominee would be inclined to go the other way, as Rehnquist and Scalia have done.
* Punitive damages. In two cases (1996 and 2003), and most recently by a 6-3 vote, the Court has ruled that exorbitant punitive damages are unconstitutional -- just what a conservative Court would do, liberals might say. But among the three dissenters in 2002 were Scalia and Thomas, who believe that the law gives the Supreme Court no warrant to interfere in a traditionally state matter. (The third dissenter was Ruth Bader Ginsburg. Stevens was in the majority. Liberals split, too.)
On those issues and others, new conservative justices could go either way. Thus a paradox: The more votes that conservatives need to flip an outcome, the harder it is to predict how conservative justices will vote.
What about Roe v. Wade, the most controversial 6-3 of them all? That case, which declared abortion a matter of constitutionally protected privacy, was decided in 1973, and both O'Connor and Stevens have protected it. When Stevens goes, is Roe finished?
To end the right to an abortion, says Ernest Young, a law professor at the University of Texas (Austin), "you need three appointments in a row to do exactly what you expect them to do on Roe." That is a tall order. Young notes that President Reagan and the first President Bush got five Supreme Court appointments between them. Only two, Scalia and Thomas, have lived up to abortion opponents' hopes -- a track record of only 40 percent.
Even on Roe and other mainstays of the Warren and Burger courts' liberalism, conservatism speaks to both sides of the issue. Few are the conservative jurists who have a kind word for the likes of Roe, and fewer still are any such jurists whom Bush might appoint to the high court. But a deep current of conservatism, perhaps the deepest of all, regards precedent as the touchstone of legal and thus social stability, and is reluctant to sweep away settled law, even if that law is flawed.
Rehnquist, who is as conservative as they come, bows to no one in his hostility to the defendants'-rights movement. Yet in 2000, the chief wrote the majority opinion (in Dickerson v. U.S. ) upholding Miranda, the 1966 case in which the Warren Court required that arrestees be informed of their rights. For many conservatives, Miranda is a symbol of all that they deplore about liberal judicial activism. Nonetheless, Rehnquist wrote, "Whether or not [this Court] would agree with Miranda's reasoning and its rule ... in the first instance, the principles of stare decisis" -- the doctrine that precedent should normally stand -- "weigh heavily against overruling it now." Miranda, Rehnquist said (to the consternation of Scalia, who was even more apoplectic than usual), had been fine-tuned by decades of often-conservative court rulings and had become "part of our national culture." This was a true Burkean conservatism. The same Burkean argument can be made for upholding Roe.
None of this is to say that liberals can rest easy if a Bush appointee succeeds Stevens -- only that the result is not as certain as activists on both sides commonly suppose. To produce a sharp turn to the right, says the University of Virginia's White, "you'd have to have a band of determined revisionists who are perfectly comfortable as judges recasting constitutional jurisprudence. And where's the evidence that that's ever happened?"
Coming Distractions
ONE CAN only imagine abortion opponents' disappointment and rage if, three conservative justices from now, the Court still declines to overturn Roe. Come to think of it, one can do better than merely imagine. Consider the recent Terri Schiavo case, a possible preview of coming distractions.
Since 1990, when she suffered brain damage that left her in a persistent vegetative state, Schiavo had been maintained on life support. In March, after seven years of litigation, the Florida courts ruled that Schiavo's husband had her proxy to remove her feeding tube and allow her to die. Religious activists, outraged by what they saw as a cold-blooded killing, then induced Congress to pass an unprecedented law turning the matter over to the federal courts.
The law ordered the U.S. courts to "determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this act, notwithstanding any prior state court determination." A federal district judge in Tampa, Fla., and then the 11th Circuit Court of Appeals in Atlanta, briskly upheld the Florida courts. Schiavo died.
Many conservatives believed that the courts had once again slapped them in the face. "This is a clear-cut case of judicial tyranny," one protester told the Associated Press, after the appeals court refused to order Schiavo's feeding tube reinserted. "All the judges who have ruled against Terri are tyrants." Actually, they were conservatives.
"It's impossible to classify anyone on that court as liberal," says Emmet Bondurant, a prominent Atlanta lawyer who has practiced before the 11th Circuit since 1962. Of the three appeals court judges who ruled in the case, the two in the majority, Bondurant says, are "very conservative." It was the least conservative of the three who favored the resumption of Schiavo's life support. He did so in language whose pleas for "flexibility rather than rigidity" in the name of "mercy and practicality" sounded reminiscent of the liberal Warren Court.
As for the two judges in the majority, they went strictly by the book. The case was tragic, they said; but well-established law in the 11th Circuit empowers the appeals court to issue a preliminary injunction only if the plaintiff can demonstrate "substantial likelihood" of winning at trial -- and Schiavo's parents, the court found, had not come close to meeting that burden. The procedures may seem heartless, but they are designed, in true conservative spirit, to deter judicial caprice. "While the position of our dissenting colleague has emotional appeal," the two-judge majority ruled, "we as judges must decide this case on the law." In their refusal to change the rules, even under the most heartrending of circumstances, they sounded like Rehnquist or Scalia.
In Kelo, activists of the Right howled when conservative judges refused to second-guess the democratic process; in the Schiavo affair, they howled when conservative judges adhered rigorously to the letter of the law. They will probably have more to howl about, even as Bush stamps his imprint on the Court. The conservative movement has spent the better part of four decades inculcating a new generation of jurists with an ethic of judicial restraint. If House Republicans or abortion opponents expect these process-minded conservative jurists to behave like outcome-oriented conservative legislators, they are in for a shock.
In recent years, hostility to the federal courts has served as an almost magical unifier of a diverse and sometimes conflicted conservative movement. The Rehnquist Court is hardly liberal (it has only two Democratic appointees), but because of its 5-4 split, and because of O'Connor's and Kennedy's occasional defections, conservatives believe that the Court is not yet on their side. Politically if not jurisprudentially, a Court with three Bush appointees would be a bombshell: As the Schiavo case suggests, conservative activists would discover that the main obstacle to a conservative judicial revolution is conservatism itself.
