The conservative judge Neil Gorsuch is very likely soon to be a Supreme Court justice. Chuck Schumer, the Senate minority leader, has declared his intention to filibuster. But even in the unlikely event that the Democrats rally behind him and Republicans don’t simply respond with the “nuclear option,” whoever replaces the late Justice Antonin Scalia will be to the right of center—guaranteeing that a majority of the Court continues to be conservative, as it has been since the 1970s.
As liberals face this reality, how many grasp how much the country would have changed with a left-of-center Court? For the first time in my adult life as a lawyer, the liberal moderates would have outnumbered the conservatives. Now that opportunity is gone, forever, in my lifetime. During the presidential campaign, it often depressed me how many of my friends thought of Hillary Clinton as the status quo candidate. Yes, there would have been the same Obama-type gridlock between the White House and the Congress. But while the Supreme Court may be the passive branch, it is also the one branch that is free of gridlock. Indeed, it is in some respects the most powerful of all branches, because it can change the Constitution.
As Democrats agonize over Gorsuch’s confirmation, let’s think for a moment just how much we lost. With a five to four majority of liberal justices, how would the country have changed?
By a five to four vote, gerrymandering of congressional districts would have been struck down. Even more than “money in politics,” gerrymandering decides who controls the House of Representatives. A center-left Court might have made a redistricting system based on independent, non-partisan commissions the law of the land.
Of course, a liberal Court, would have been likely to reverse Citizens United. More importantly, it might have revisited an earlier, even more pernicious precedent, Buckley v. Valeo, the 1976 case that established that money is a form of speech. Now, if the Democrats ever do regain legislative majorities and pass campaign finance reform — say, at some point in the next twenty years — a conservative Court will cite Buckley and Citizens United to strike it down.
At some point, a center-left Court might have declared education a “fundamental” right. In Rodriguez v. San Antonio School District, a 1974 case, the Supreme Court ruled five to four that no such right existed under the Constitution, meaning public school children in different districts had no claim to equal state funding. Forty years later, in a far different world, there is even more reason to declare education a fundamental right. The enshrining of a constitutional right to public education would have been monumental. But now? It’s out of the question.
Or consider race discrimination. The 1976 decision in Washington v. Davis held that laws with racially discriminatory effects don’t violate the Equal Protection Clause of the Fourteenth Amendment as long as they don’t have a discriminatory purpose. In 2001, in Alexander v. Sandoval, the Court applied the same reasoning to narrow minorities’ ability to sue under Title VI of the Civil Rights Act. A liberal majority could have reversed those decisions and made it easier for victims of discrimination to have their day in court. Instead, a center-right Court will continue with the status quo, and may well dismantle what’s left of the Voting Rights Act.
Under a center-left court, we may have been able to make progress on gun control. Though federal law makes it impossible to sue firearm manufacturers, there could have been a chance to sue state and local governments under the same Title VI if their lax regulation of dealers had a discriminatory effect on African-Americans. Or if lax policies led to high levels of violence that traumatize young children — and create mental and emotional handicaps —these governments could have faced liability under the Americans with Disabilities Act.
The death penalty would have been gone. To the young who wonder what the late 1960s were like, here’s what I sometimes say: No one was being executed. The liberal Warren Court had the death penalty on hold, and was about to kill it.
We could have hauled corporate America back into court. A center-left Court would have stopped the use of arbitration clauses that bar class actions against them. All kinds of federal and state laws — now dormant and impossible to enforce by consumers — would have sprung back into effect. Had Clinton won and replaced Scalia with a liberal justice, private lawsuits would have done more to punish Wall Street than putting in a Torquemada to head the SEC.
A labor movement might have come back, or at least survived. The Court could have reinterpreted the Wagner Act to allow “members only” bargaining. That is, a union could have the right to bargain at least for those who want to join, whether the union is the exclusive representative or not. Without a right to collect dues when it is “exclusive” representative, and without a right to bargain when it is not, what’s left of the labor movement now will get even smaller. Thanks to Trump’s victory, it is a near certainty that the conservative Court will make “right to work” the law of the land.
Finally, what might have been the biggest change: the country’s best judges in the lower courts would know that if they did the brave and bold thing, the Supreme Court would have their backs. I know liberals are currently giddy about federal injunctions against travel bans, and applauding the power of an independent judiciary. But hundreds of Trump judges will soon be on the bench. The notion that such an independent judiciary will be a check on tyranny will seem far less plausible in a year, let alone three.
In a way, it’s discouraging to hear so many anti-Trump voices saying that we must defend the Constitution. I understand the sense in which they mean it, but the challenge for the left has always been not to defend but to change the Constitution: to recognize fundamental rights, like education; to have the poor finally protected from discrimination under the Fourteenth Amendment; to get rid of gerrymandering and all the other devices that frustrate the popular will. There seems little hope of doing so now.
A few months ago a friend was unsure what to tell his son, who thought law school might be one way to change the world. He asked me: “Knowing what you know now, would you go back and do it all over?”
No—at least, not to “change the world.” If I had known in the early 1970s that a conservative judicial era was about to begin, and last the rest of my life, I’d have politely passed on law school. It was unfortunate timing on my part. A few months ago, I thought things were about to change. It was even galling to me that a liberal era of law was set to begin when I am so old and ought to retire—I was going to miss the dawn of a new Warren Court era.
Well, now, it’s not going to happen. A much darker time is coming. I know what I would tell my friend’s son: do not go to law school, not now. Maybe he just wants to bear witness to injustice? Sure. But I wish there were a better reason to go.