When Power Shifts on the Court

During Richard Nixon’s first term in office he placed three Justices on the Supreme Court: Warren Burger (as Chief) in 1969, and Lewis Powell and William Rehnquist in 1972. That effectively ended the liberal majority on the Court and it has remained an (increasingly) conservative Court ever since. There are many ways in which this has mattered. For example, in 1972, the Supreme Court ruled in Furman v. Georgia that the death penalty as then imposed in the states was unconstitutional. The California Supreme Court banned the death penalty in their state in the time between the oral argument in Furman and the issuance of the decision. The combined result was an effective moratorium on the death penalty that lasted until 1976 when the more Nixonian-flavored Court ruled in Gregg v. Georgia that the death penalty could be imposed provided that the process met certain standards. California’s voters used the initiative process to immediately overrule their Supreme Court and reinstate the death penalty but it did not actually carry out any executions until 1992.

This example demonstrates two things. The first is that it’s possible to eliminate the death penalty in this country and that we may be closer to accomplishing that many people suppose. The second is that even overturned or superseded Court decisions can have long-lasting consequences, both good and bad.

The Nixonian Court, in a series of rulings (most notably Buckley v. Valeo), gutted the campaign finance efforts of legislatures all across the country by defining money as speech. There have many other noteworthy cases since 1972, including the watering down of Roe v. Wade that occurred with Casey v. Planned Parenthood, the infamous Citizens United ruling, and the more recent gutting of the preemptive enforcement mechanisms of the Voting Rights Act.

But all the action hasn’t been on the court. In 1987, the FCC (with all members appointed by either Nixon or Reagan) did away with the Fairness Doctrine. This opened the door for Rush Limbaugh, Fox News, and the erosion of the public interest requirements for broadcast news.

In all of these cases, it took years to see how the rulings would turn out. The death penalty would make a comeback in some states and not in others, while remaining on the books if rarely used by the federal government. It would never become rationally applied or overcome the objections of Justices Brennan and Marshall that it was cruel and unusual in practice. Abortion rights would be whittled away in many states. Every effort to regulate political money would come to grief leading to a Congress that spends half it’s life on the phone begging for money and a Democratic Party that had to keep labor at arm’s length in order to finance itself. The media became polarized and frivolous and primarily profit-driven, losing any sense that they have obligations to the public.

Yet, these things can be unwound, at least to a degree, in the same way that they became problems. It starts with a liberal majority on the Supreme Court that will take a look at the death penalty again, that will revisit whether money is really speech, that will slap down voter suppression efforts and aggressively defend reproductive rights.

That majority will come soon, provided that Scalia’s seat is filled by a liberal judge. It will grow if Justice Kennedy retires as many expect. It will grow again if Clarence Thomas decides that it’s no fun being a silent dissenter in a caucus of three.

Just as Nixon remade the Court in his first term in office, Hillary Clinton could easily do the same thing, leaving it with as much as a 7-2 liberal majority for years to come, even if she loses in 2020.

And I’ve only scratched the surface of how this could matter. Want criminal justice reform and an end to solitary confinement? Want to draw brighter Church/State lines than what we’ve gotten with blurry rulings like Burwell v. Hobby Lobby?

Previous judicial efforts to lead our country toward progress created a political backlash, but the new Generation X and Millennial generation are ready to digest this kind of change.

And that’s precisely why the Republicans broke all norms and precedent in refusing to confirm Merrick Garland and are promising to block any new Supreme Court appointments if Clinton is elected. They came damn close to getting a 5-4 majority for overturning Roe v. Wade but the wrong Supreme Court Justice died and now things are set to tilt sharply in the opposite direction.

It’s going to matter, and the Republicans seem to understand this far better than the Democrats.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.