We learned a lot about this Supreme Court on Monday. For one thing, its conservative majority thinks that a for-profit company selling plastic flowers is legally the same thing as a religious nonprofit doing charity work in accordance with its scriptural beliefs. But I really mean we’ve learned about the Court’s modus operandi, and it portends terrible things for the future unless that conservative majority is reduced to a minority. I say to despairing liberals today: It can be so reduced, and all of this judicial activism—all of this legislating from the bench—can be overturned.
It’s clear now across a number of legal areas that the Court’s conservatives pick their spots very carefully. They’re playing the long game. They’re like a lion toying with a captured springbok. You’ve seen it on the Discovery channel: The lion captures the prey and toys with it for a while—minutes on TV, but in real life sometimes hours—before actually consummating the kill.
So it has been with the conservative majority. Across numerous areas, from abortion rights to affirmative action to voting rights to campaign finance to school desegregation, the Court’s majority, whether led by William Rehnquist or John Roberts, has generally taken things kind of slow. A decision here will chip away at that particular right, a decision there will roll the clock back a few years but only a few. The result has been a bit of a paradox: a majority that is decidedly radical in its aims but a bit gradualist in its methods.
Voting rights provides perhaps the best example. In a 2009 case, the Roberts Court upheld the Voting Rights Act by 8-1 (Who are you thinking the “1” was? Prize if you guessed Clarence Thomas.) Roberts, writing for the majority, noted then the Court was ducking for the time being the big questions of constitutionality: “Whether conditions [faced by black voters in covered jurisdictions] continue to justify such legislation is a difficult constitutional question we do not answer today.” Four years later, of course, the majority sunk its great canine teeth right into the Act’s neck, in Shelby County v. Holder.
There’s ample reason to think that today’s decisions constitute a similar toying around with the prey. This is particularly true of the Harris v. Quinn decision, the less well-known of the two but the one that may someday be far more consequential in political terms. The conservatives certainly hobbled public-sector unions by creating a category of “partial public employees” that will make it easier for some state and municipal employees to opt out of being required to join those unions. But it didn’t go as far as it might have, as Adam Serwer of MSNBC noted. That would have involved overturning a 1977 Court decision that upheld automatic deduction of union dues.
The result has been a bit of a paradox: a majority that is decidedly radical in its aims but a bit gradualist in its methods.
The Court didn’t do that, but Justice Samuel Alito’s opinion includes a hefty section (PDF) attacking that decision. One day, when the case and time are exactly right, the conservative majority will kill that springbok too, and public-sector unions in all but a few states will start fading away, and with them, a heck of a lot of money and activity that support Democratic candidates every election. Don’t think Alito and the rest of them don’t grasp these connections.
Whatever is to stop it? Pretty damn straightforward: Elect, and reelect, a Democratic president. For practical purposes, of course, that would most likely be Hillary Clinton. Take in this sentence: If Clinton is elected and serves two terms, the odds are strong that today’s 5-4 conservative majority—the only kind of Court, really, that any American under almost age 40 has ever known—will be, by the time she left office in 2025, changed to a liberal one.
Check the list. Everyone thinks Ruth Bader Ginsburg will be the first current justice to retire, because of her illness, but that would just leave President Clinton replacing a liberal with another liberal. Ditto Stephen Breyer. But he is just 75. Antonin Scalia and Anthony Kennedy are, respectively, 78 and 77. That puts them in their mid-to-upper 80s by 2025. Clinton might have the opportunity to replace both of them, or almost certainly one of them, which could flip the Court to a 6-3 or at least a 5-4 liberal majority for the first time since the 1970s.
Imagine a 6-3 liberal court revisiting all of these appalling decisions. Overturning Citizens United. Reinstating the Voting Rights Act. Re-desegregating, if you follow me, the nation’s school districts. Expanding women’s right to control their physical destiny instead contracting it. And more.
In the 1980s, with the advent of the Federalist Society and the sophistic “original intent” doctrine, conservatives showed they meant business about the courts, and they took over. Federalist and other organizations groomed conservatives for spots on the federal bench, and the state of the courts became one of the very most important issues for the right in presidential elections.
For liberals, the courts never quite occupied that exalted a place. In my experience, it has more often been a punch line. “Oh well,” says one dispirited liberal to the other in October of an election year after watching the Democratic candidate make a series ideological compromises, “there’s always the Supreme Court to think about.” But liberals overall didn’t think about it with the intensity that conservatives did.
Monday’s decisions, along with Shelby, Citizens United, and a handful of others, should have the effect of focusing liberal minds on the problem. The timing is exactly right, too. Given the age distribution on the Court, the next two presidential terms could well determine which side controls the majority on the Court for the next 30 or 40 years. A world in which conservatives sit around gnashing their teeth as they await the latest decision from the bench every June is more possible than you think.