As they charge through the eventful first 100 days, President Obama and his allies are racking up legislative victories. Soon they will have to win the votes of a new audience: men and women in black robes. As the former constitutional-law professor surely knows, that can be a tough crowd. Here's the core constitutional fact: a progressive president and Congress now face a conservative judiciary, for the first time since 1937. Obama's ambitious agenda, if enacted, must go before federal courts—where judges can rewrite or strike down key provisions. From the TARP bank bailout, to climate change "cap and trade," to health-care reform, new laws could face an array of judicial doctrines recently honed by conservative lawyers. We can't know for sure, and carefully crafted laws usually withstand judicial scrutiny. Still, imagine if Hillarycare had passed in 1994. Does anyone think the Rehnquist Court would not have vivisected those parts it found unpalatable?
In fact, for most American of history, this alignment has been the norm. From the time Thomas Jefferson faced an array of Federalist judges, the unelected third branch has tended to be more conservative, more protective of private property, than the elected branches. ("The Federalists have retired into the judiciary as a stronghold," he moaned.) In the early 20th century, the Supreme Court blocked Progressive Era laws, such as the minimum wage for women and limitations on working hours. It began to strike down key New Deal laws, too, until Franklin Roosevelt threatened to pack the bench by expanding the number of justices. When the court abruptly started to uphold FDR's laws, wags dubbed it "the switch in time that saved nine." The era marked by Chief Justice Earl Warren, when liberal federal judges sometimes raced ahead of the public and political leaders, was something of a fluke that lasted only about two decades.
For the past quarter century, the courts have been conservative, but so has the government. Few new sweeping regulatory schemes became law. Now the Roberts Court has tilted markedly more conservative than the Rehnquist Court—at the same time the voters elected a more liberal set of politicians than they had in half a century. Republican presidents appointed seven of nine Supreme Court justices, as well as two thirds of the federal appeals judges who make most key rulings. Of course, party labels aren't everything. Dwight Eisenhower called his appointment of Warren "the biggest damned-fool mistake I ever made." Still, a study by professor Cass Sunstein, now a top Obama legal aide, shows that the political philosophy of lower-court judges often predicts how they will rule. Constitutional conflict may loom.
How will this play out? First, in the cases themselves. Challenges to TARP, which gives vague powers to the executive branch, may unfold soon. If banks are nationalized, shareholders may assert they have been unfairly deprived of the value of their investments. Other goals, such as health-care reform and climate-change curbs, inevitably involve a blizzard of new rules, mandates and taxes. These will face challenges from businesses, who have found a sympathetic hearing in many recent cases. As law professor Jeffrey Rosen points out, of 14 antitrust cases heard by the court over the past two terms, business won every time. Conservatives increasingly cite the limits of the Constitution's "commerce clause," or states rights, to blunt federal action.
Then, too, will come the looming fracas over judicial appointments. A president nominates hundreds of federal judges, and Obama is expected to unveil his first batch later this spring. Ronald Reagan and George W. Bush unhesitatingly used their picks to push the court system to the right. Will Obama press, as many of his backers hope, for "our Scalia," jurists as provocatively progressive as their conservative counterparts? Confirmation hearings long focused on social debates, such as abortion or affirmative action. Now senators may press nominees to bare their views on property rights and regulation. We can expect conservatives to fight just as fiercely to block progressive judges as their counterparts did.
In some ways, the biggest battles will be over doctrine—over the meaning of the Constitution and how to interpret it. Once, liberals like Justice William Brennan relied on what he called a flexible "living Constitution." In response, conservatives argued for relying on the original intent of the Founders and decried "activist judges." Now debates have turned topsy-turvy. Arguably the most visible advocates of a "living Constitution" are John Yoo and Dick Cheney, who claim it gives the president nearly unlimited power, while liberals are more likely to quote Madison and Hamilton on checks and balances. Justice Stephen Breyer, in his book "Active Liberty," argued that the Constitution at its heart seeks to boost the participation of citizens in their government. This deference to the idea of democracy may give room to uphold energetic new statutes. Faced with the prospect of courts far more likely to strike down liberal laws, many progressives may again embrace the virtues of "judicial restraint."