I picked the wrong year to come out as a Supreme Court hater.
Just a few months after my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, was published, the Supreme Court devoted the end of its 2014-15 term to a campaign to depress my book sales. Marriage equality is the law of the land! Obamacare is saved! America’s civil rights laws will not be gutted!
Marriage equality aside, the real story of the Court’s recent term is a tale of conservative overreach. King v. Burwell, which rested on the unique legal theory that much of the text of the Affordable Care Act did not count, would never have been filed if conservatives hadn’t believed that they had five loyalists on the Supreme Court. A case attacking the federal Fair Housing Act relied on a legal argument that was rejected by every single federal appeals court that considered it.
And it’s unlikely that liberals will celebrate the Court in the 2015-16 term, when it is poised to use upcoming cases to kill affirmative action and throw public-sector unions into financial turmoil. Moreover, even though a majority of members of the Court rejected attacks on Obamacare and the Fair Housing Act this year, a significant minority of the justices did not. America is one presidential election away from a world where the Supreme Court is a wholly owned subsidiary of the Republican Party, and a single good term does not sanctify it as an institution.
Writing in the previous issue of Democracy [“The Constrained Court,” Issue #37], Amanda Hollis-Brusky offers a more lasting critique of my thesis in Injustices—the thesis that the Supreme Court has, for most of American history, been a malign force. Citing scholarship outlining the theory that our nation’s highest tribunal is a “constrained court,” Hollis-Brusky argues that “the manner in which the Supreme Court can [shape the society around it] is powerfully constrained and almost always dependent on the other branches of government.” Thus, she argues, to the extent that the justices have worked ill, they are merely “accomplices” who have “sometimes aided and abetted injustice throughout history.”
Injustices does not reject this “constrained court” model. Indeed, in many ways it embraces it. Five years after Brown v. Board of Education, the book explains, “just forty of North Carolina’s three hundred thousand African American students attended integrated schools.” Similarly, only “[f]orty-two of Nashville’s twelve thousand black students attended desegregated schools in 1960.” Injustices explains that “the first ten years of Brown v. Board of Education did more to demonstrate that the Supreme Court was either unable or unwilling to tear down Jim Crow than it did to establish the justices as grand defenders of civil rights.” Ultimately, I conclude that the “most important civil rights decisions” of that era were three decisions upholding the laws Congress enacted to end segregation, not the Court’s decision in Brown.
Where I part ways with Hollis-Brusky, however, is her implication that because the Supreme Court is constrained in its ability to achieve social change, it follows that the Court is equally constrained in its ability to thwart that change. Most of the evils discussed in Injustices, from the Court’s older decisions striking down child labor laws and the minimum wage to its more recent rulings gutting campaign finance regulation and the Voting Rights Act, fall into the latter of these two categories. And it is here, by standing athwart history yelling, “Stop!” that the Court has inflicted the greatest harm on society.
The seminal work laying out the constrained court model is Gerald Rosenberg’s The Hollow Hope, which was written as a rejoinder to the notion that litigation is an effective tool for implementing a liberal agenda. “[M]y aim,” Rosenberg wrote in the preface to the book’s first edition in 1991, “is to understand to what extent [courts] helped and can help produce liberal change.”
Though Rosenberg concludes that courts are constrained in their ability to drive social change (following his view, the Court’s recent marriage equality decision can be explained by broad support for gay rights both within and outside of government), he is also explicit about what his inquiry does not demonstrate. “Studies of the role of the courts in the late nineteenth and early twentieth centuries,” Rosenberg writes, “. . . show that courts can effectively block significant social reform.”
Admittedly, Rosenberg qualifies this statement by adding that while “it is clear that courts can stymie change,” they ultimately cannot “prevent it.” Yet even if the walls courts build blocking progressive legislation are not impenetrable, they can stand for quite some time and cause a great deal of misery.
Consider the Court’s 1918 decision in Hammer v. Dagenhart. As I explain in Injustices, child labor was widespread throughout much of the early twentieth century. Young boys breathed choking, coal-dust-filled air as they sorted valuable coal from worthless slate. Meanwhile, their sisters produced socks and underwear for as little as 47 cents a day. Along the Atlantic shore, children as young as four filled pots with oysters and shrimp until the cold, caustic shrimp left them unable to use their fingers. In the South, cotton-mill managers sought to eliminate adult male employment entirely and replace these relatively expensive workers with cheaper children.
Hammer struck down a 1916 federal law intended to end these practices. Though it was eventually overruled in 1941, that result was cold comfort to the generation doomed to a childhood of hard labor.
Consider as well the Court’s 2012 decision permitting states to opt out of Obamacare’s Medicaid expansion without consequence. History suggests that this decision will not have a lasting impact on state policy—Medicaid was originally enacted as an optional program for states in 1965, but by 1982, every state had chosen to join this program. Yet, for the millions of Americans denied coverage while states wait to take up the Medicaid expansion—and for the thousands of Americans who are likely to die due to their inability to pay for health care—the Court’s decision to stymie change will be quite consequential indeed.
The conclusion that courts can halt progress but typically cannot create it is not particularly surprising. When courts exercise judicial review, they ordinarily must decide whether to strike down a law. In most constitutional cases, judges can only destroy something the legislature has made. They cannot bring a new law into being.
Even when courts are a creative force, they typically have only the authority to equalize existing benefits. A court can order black children admitted to an all-white school, but it cannot build a new school system from scratch. It can welcome same-sex couples into the existing institution of marriage, but it could not have built that institution from the ground.
Perhaps this explains, at least in part, why the American judiciary has, for most of its history, served the goals of conservatives. Litigation is better suited to an anti-government movement than it is to a movement that relies on government action.
Nevertheless, while courts are not liberals’ natural allies, they can and should play a supporting role in building a democracy inclusive of all Americans. As Hollis-Brusky notes in her review of Injustices, I do “not actually think the Supreme Court should always be passive.” At the same time, she criticizes the book for not articulating a “principled decision rule” for “when the Supreme Court should defer to elected majorities versus exercise its power of judicial review.”
The reason for this is twofold. Injustices is a work of storytelling as much as it is a work of legal theory. There’s no shortage of scholarship proposing, often with limited success, rules to guide judges’ exercise of judicial review. There is surprisingly little writing, however, recounting the Court’s history through the eyes of the people it hurt the most. Injustices tells their stories.
The second reason is that the Constitution is a terribly vague document that offers little guidance on how judges are supposed to decide many constitutional cases. It insists that “[n]o state . . . shall abridge the privileges or immunities of citizens of the United States,” but it offers few hints as to what these “privileges or immunities” may be. It forbids “unreasonable searches and seizures” but largely delegates to judges the task of determining what makes a search “unreasonable.”
What punishments are “cruel and unusual?” When the government denies someone “liberty,” how much “process” is “due”? How should our nation guarantee a “republican form of government”? What’s the “general welfare of the United States”? The Constitution does not say, and if I could identify a “principled decision rule” that answers all of these questions, I would solve a problem that judges, lawyers, and legal scholars have wrestled with since the day these constitutional provisions were ratified.
Though I’m unable to solve that one, I’ll add that no one has offered a better answer than the Court’s 1938 opinion in United States v. Carolene Products. Under that ruling, governance by the people’s representatives is the rule and judicial intervention is the exception. And those exceptions should largely be limited to cases where an enumerated constitutional right is threatened, where marginalized groups are pushed further to society’s margins, or where a law “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.”
If we believe that the right to govern flows from the consent of the governed, then the judiciary should be hesitant to act unless it has a clear constitutional mandate to do so, or when its actions will ward off efforts to cut some Americans out of our democracy.
Hollis-Brusky’s sharpest critique of Injustices is a warning that it may “have the unintended consequence of redirecting valuable resources from state and federal legislative races and other grassroots movements into an institution that is simply incapable of being either the villain Millhiser characterizes it as being or the savior we all would like it to be.”
I share her view that the Court cannot be the hero we need, but I dispute her claim that it is incapable of playing the villain. I also dispute the implication that progressive resources cannot be marshaled to ward off the Court’s villainous tendencies.
NFIB v. Sebelius, the first lawsuit challenging Obamacare, was a study in liberal naiveté. Comforted by precedents that were inconsistent with the plaintiffs’ legal arguments, most liberal Court watchers expected the case to be dealt with swiftly and dismissively. We were then hornswoggled at every turn as the plaintiffs’ arguments were embraced by trial judges, a federal appeals court, and, ultimately, very nearly at the Supreme Court, where Obamacare came within inches of death. And even though it survived that near-death experience, it did so at the cost of changes that have thus far prevented millions of the most vulnerable Americans from obtaining health insurance.
We did not account for the effectiveness of a PR campaign executed by Republican officials, legal scholars, media outlets, and other elite validators, all of whom came together to lend legitimacy to arguments that, in the words of one leading conservative judge, had no basis “in either the text of the Constitution or Supreme Court precedent.”
By the time King v. Burwell, the second case that presented an existential threat to Obamacare, reached the Supreme Court, liberals had learned their lesson. King was won by outstanding arguments presented by Solicitor General Donald Verrilli Jr. and a host of amicus briefs, but it was also won by a comprehensive effort to highlight why a decision against Obamacare would be illegitimate.
Every time a lawyer for the King plaintiffs was caught in a contradiction, it was reported in a national news outlet. Every time a previous statement by a Republican governor or member of Congress revealed that he or she once rejected the legal theory in King, that became national news as well. Columnists denounced the case. Liberal elites mocked it. By decision day, it was hard to escape Linda Greenhouse’s conclusion that this lawsuit was simply an effort to recruit the justices “into the front lines of a partisan war.”
Rosenberg and Hollis-Brusky are correct that courts are frequently constrained by the nation’s broader political landscape. But this landscape is not static. When the Supreme Court threatens a progressive accomplishment, the political landscape can be shaped in a way that, at least, makes it more difficult for the justices to strike down that accomplishment. That won’t save liberalism from a Court of five Alitos, but it can potentially move a Roberts or Kennedy.
Liberals, however, will be too slow-footed and too reluctant to engage with these battles if they do not understand the threat that the Supreme Court presents. Injustices is a book about that threat. To the extent that it scares a few more soldiers to the battlements, it has done its job.