As we gather in our respective bunkers awaiting the white smoke from the Supreme Court, I thought a little history discussion might be in order. We’ve heard conservatives say many times that the Warren Court overreached, legislated from the bench, and divided America. It’s typically called the most controversial court in American history, and we know the reasons why. But the numbers tell a very different story. Even though Roberts has reigned on Maryland Avenue for just seven years as opposed to Earl Warren’s 16, the Roberts nonet (more accurately, quintet) has issued far more aggressive and in-your-face 5-4 rulings on controversial and high-profile cases and done far more to divide the country. I don’t know what they’ll do on health care, but they already deserve to displace the Warren Court in the controversy sweepstakes.
First I looked at eight representative and major Roberts Court decisions in hot-button issue areas.
Race: Parents v. Seattle & Meredith v. Jefferson, which began as two cases and were eventually combined into one, also known as the Seattle/Louisville desegregation case. The Court ruled that local school districts basically couldn’t do anything to ensure racial diversity in their schools.
Abortion: Gonzales v. Carhart upholding the federal partial-birth abortion ban.
Campaign finance: Citizens United vs. Federal Elections Commission, which prohibited restrictions on many independent expenditures; also McCain v. Wisconsin Right to Life, which weakened key provisions of the McCain-Feingold law.
Equal Rights: Ledbetter v. Goodyear, which made it harder for (female) employees to sue employers on equal-pay grounds.
Free Speech: Morse v. Frederick, the so-called Bong Hits 4 Jesus case, in which the court limited free-speech rights of students.
Punitive Damages: Philip Morris v. Williams overturning an Oregon court’s smoking-based award to one ex-smoker.
Immigration: Lopez v. Gonzales, which ruled that a non-citizen can’t be deported for committing a drug crime that’s a misdemeanor under federal law even if it might be a felony under state law.
That’s eight cases (two in the campaign-finance realm). Seven of them—all but the last one—were 5-4 decisions. Exactly the same five in the majority, and exactly the same four in the minority. (Lopez was 8-1, supported by all but, yes, Clarence Thomas.)
Then I went back and looked at eight historic hot-button Warren Court rulings. Judging from the way the media write about these things today, you’d think these decisions were all narrow and highly contentious. In fact, of the eight, only one was a 5-4 ruling. Before I get to explanations, let’s look at vote tallies.
Brown v. Board of Education was decided 9-0. Ditto Times v. Sullivan, the famous First Amendment case that made it harder for public figures to sue for libel. Gideon v. Wainwright, which established the right to counsel if the accused couldn’t afford it? Now we’re getting into criminal procedure, the old “soft on crime” charge. Surely this one was more contentious? Nope. It too was 9-0. Ditto Loving v. Virginia, which struck down Virginia’s ban on interracial marriage, another goose egg. That’s a heck of a lot of change with no dissent.
In the 1960s, Nino Scalia would’ve been giving crackpot speeches on a marginal rubber-chicken circuit, not imposing his 16th-century will on the country from the highest court.
Griswold v. Connecticut, the highly controversial 1965 precursor to Roe v. Wade, which started to sketch out a right to privacy, was a 7-2 decision. As was Roe itself. That’s right—the evil Roe, not a close call. Baker v. Carr, the one-person, one-vote ruling, was a 6-2 decision. Finally, only one, Miranda v. Arizona, was a hotly contested 5-4, and it was indeed immediately controversial.
I admit there are some limits to what this proves, given the many different personalities who served as justices, especially during the long Warren era. But at a minimum, my comparison proves this: the Warren Court, so often accused of recklessly imposing radical new rules on an unsuspecting American society, was often operating instead on the basis of a pretty broad consensus that was both legal and in many cases societal. Most of the rights the Warren Court expanded were supported by majorities then and are still supported by majorities now.
Some of its decisions were immediately controversial because of vocal and politically powerful minorities—Miranda (law-enforcement professionals), Roe (the nascent religious right), Brown (the South). But Warren worked to get consensus on many cases. On Brown, when he was new to the court and sitting for nearly the first time among towering figures like Robert Jackson, Felix Frankfurter, and William O. Douglas, Warren had a simple majority in support of overturning Plessy v. Ferguson on the first go around the table. But Frankfurter’s allegiance in particular to that point of view wasn’t completely clear, wrote Jim Newton in Justice For All: Earl Warren and the Nation He Made, and Warren “wanted a solid court, ideally a unanimous one, to speak with a single, clear voice on a matter of moral urgency.” He waited, hosted more discussions, and the nine votes eventually came around.
Conservative readers will here blame today’s liberal bloc for the fact that we don’t get such consensus today, but the reality is that once Roberts and Samuel Alito hit the bench, the Federalist Society clock started ticking loudly: We’ve got our five now, boys, and we don’t know how long we’ll have them, so let’s get moving. Desegregation? Boom, 5-4! Equal pay? Bang, 5-4! Campaign finance? Zap, 5-4! And so on. The express point has been to radically remake society, without a hoot of concern about whether it was being done by five or seven or nine. In fact, to most conservatives, if a decision infuriated the Court’s four liberals, so much the better.
Some might argue here that I’d better just face the fact that the country has gotten more conservative. On a few things, yes—fiscal matters, certainly, and probably criminal justice. But on most matters that are court controversies, America has if anything become more liberal than it was 40 years ago. Certainly racial attitudes are far more liberal. But more liberal racial views didn’t stop Roberts’s bullheaded little majority from telling Seattle and Louisville that even though they had agreed to racial-mixing plans and were perfectly happy with them, they still couldn’t carry them out.
So no, we’re not “more conservative.” The main thing that changed between then and now, instead, is that rabidly right-wing billionaires started throwing many millions of dollars into politics, forming and funding groups like the Federalist Society, which have managed to assert their will. They represent about the same 30 percent they represented back when Barry Goldwater won the GOP nomination. It’s just that now they’re organized and lavishly backed, whereas before they weren’t. In the 1960s, Nino Scalia would’ve ended up teaching at Notre Dame law school (where he belonged)—a crackpot speaker on a marginal rubber-chicken circuit that mainstream America could have blissfully ignored, instead of sitting on the highest court in the land imposing his 16th-century will on the rest of us.
And so: If we get a 5-4 ruling against the Affordable Health Care act or any part of it, this is the context to keep in mind. It will be another in a series of ferociously ideological one-vote-margin decisions from the court that we do not need history’s perspective to decide is far and away America’s most ideological.