Yet despite the Court’s modern reputation as a bulwark against government overreach and a protector of civil rights — a reputation earned largely due to the historic and epoch-defining work of the Warren Court — there’s an argument to be made that the reactionary rulings handed down by the Court on Monday were, in truth, quite in keeping with its historical role in American politics. (During his heyday, for example, Thomas Jefferson was generally seen as a leader of those in American politics who we’d today call progressives; and he hated the idea of judicial review.)
Hoping to further explore the Court’s historically complicated relationship with social change and progress, Salon called up University of Pennsylvania Law School professor Kermit Roosevelt, author of “The Myth of Judicial Activism,” to discuss Monday’s rulings and the “inherently conservative” nature of the Court. Our conversation can be found below, and has been edited for clarity and length.
I would say disappointed more than surprised. I sort of saw them coming; I think a lot of people did. You know, this is a pretty conservative Supreme Court and we’re getting conservative decisions.
It depends on what you mean by “judicial activism.” So, if by judicial activism people mean designing cases based on political preferences rather than the law or the Constitution, I think that’s not typically a helpful way to frame the issue because in a lot of these cases, the law really isn’t clear and it’s possible to have disagreements. And sometimes — probably most of the time — which position you take will depend on a broader judicial philosophy or a broader conception of the appropriate nature and relation of the state and the federal government or the federal government and the people or something like that. And that’s just legitimate Constitutional interpretation.
Occasionally, you’ll find justices taking positions that seem to advance a partisan preference and that are contrary to everything they’ve said about broader Constitutional issues and that really does look like a politically motivated decision. Bush v. Gore is a great example of that. There aren’t really any other such striking examples. In Bush v. Gore, the conservative justices were suddenly very aggressive in enforcing an equal-protection claim — and that’s what the case was based on — against the state, which is totally at odds with what they usually do in equal-protection cases. And the liberals were advocating restraint and respect for the states, which is also not what they typically do in equal-protection cases. So there it looks like that decision was driven by partisan politics. Most of the time, I think, decisions can be understood in less partisan terms and it’s better to try and understand them that way.
Your bringing up Bush v. Gore makes me think about how a lot of people have complained that in the Hobby Lobby decision, Justice Alito writes that the majority’s opinion should not be extended to cover other medical procedures against which someone could have a religious liberty complaint. The idea that the logic put forward in the ruling shouldn’t be followed if the medical procedure is something besides the culture-war issue of birth control — some liberals thought that was reminiscent of the Bush v. Gore majority’s claim that their ruling shouldn’t be seen as applicable to any other circumstance. Is that a fair comparison or does it go too far?
I don’t like to be too cynical about Supreme Court decisions, but I can see why people think that. And I do think that’s one of the troubling things about the Hobby Lobby decision, because they say “Well, look, here are people who are claiming that this burdens their religious exercise and we think they’re sincere and we’re not going to ask how substantial the burden is and we’re not going to ask whether science suggests that they’re just wrong about some of the facts here, but in the future maybe we will. In the future, maybe we’ll treat different religious claims differently.”
That almost suggests that this religious claim is getting preferential treatment compared to the other hypothetical future claims that they’re talking about — and that, of course, is something the Supreme Court is not supposed to do under the free exercise laws. So it presents two sort of equally unpleasant possibilities. One is that they are going to be extremely deferential to free exercise plans in the future, which almost seems to suggest that people can get a pass from federal law just by invoking religion. Or it suggests that they’re treating this claim better, which is troubling because it’s a politically conservative Christian claim, and the Supreme Court should certainly not be more sympathetic to certain religions than others.
Taking a step back from examining Monday’s decisions, I wanted to ask you about how you see the Supreme Court operating throughout American history, specifically in regards to how it has related to progressive social movements. How would you describe that relationship?
Historically, the Supreme Court’s role is basically as a moderating force. Which is saying it’s kind of an anchor that slows down the states and the federal government when they try to deviate from the status quo. It does this for basically two reasons. One is that the power of the Court is limited — basically, to striking down laws, to stopping governments from doing things. That means it’s hard for the Court to implement its own programs. The Court can say no to the other branches of government, but it can’t go out and do things on its own.
The other reason the Court has this moderating effect is that it can delay political movement. So, a new political movement, [it] can win the presidency in at most four years, [it] can take over Congress in two years, [it] can take over the Senate relatively quickly, or [it] can take over a state government. But to get people of a particular political persuasion on the Supreme Court — and to get a majority of them — will take a very long time.
So here we are, relatively late in Obama’s second term, and he’s appointed two justices. He has not been able to bring the Court around. The only time you you’ve actually seen a president bring the Court around within his time in office was FDR — and, of course, you’re not going to see anyone serving as president as long as FDR did again. So, the Supreme Court tends to represent the political consensus of maybe 10 or 15 years ago, and to that extent, it’s sort of a moderating force on new directions that the states or the federal government might want to go in. In that sense, it tends to be inherently conservative.
To that last point, the idea that the Court is inherently conservative, I think that might go against a lot of left-of-center people’s assumptions, largely because so many of us are raised now venerating Brown v. Board of Education and more generally praising the Warren Court’s record on civil rights. Do you think that seeing the Court through that historical lens is useful, or does it obscure as much as it reveals?
I think that’s probably the wrong way to look at the Court. Now, people can be excused for doing it because the civil rights movement loomed very large in the national consciousness and it was the way in which a generation of law professors understood the Supreme Court. And a lot of people had this idea that the Supreme Court is noble and just and wise and sort of calls upon Americans to recognize our deep constitutional commitments and become our best selves. But there’s a couple of things to say about that. One of which is the responsibility that people give the Warren Court for the civil rights movement is probably excessive. So Brown was not a product just of the Warren Court. Brown depended on a social movement for racial equality and efforts by the NAACP. And also Brown could have amounted to nothing if other branches of the federal government had not supported the Supreme Court.
Right, there was about a 10-year gap between the decision and the federal government’s actually making an effort to enforce it.
Yes. So the Court by itself: A) didn’t produce Brown and B) couldn’t enforce Brown … The Supreme Court was not the sole source of Brown and couldn’t have made Brown work by itself … And [the Warren Court] is also really anomalous. If you look at the broad sweep of history, the Supreme Court is not in the forefront of equality movements. Particularly if you look at racial equality, what did the Supreme Court do before the Civil War? The Supreme Court tried to sort of tamp down sectarian tensions by placating the South in decisions like Prigg vs. Pennsylvania — where the Supreme Court says yes, if you think that someone is an escaped slave, you can come up North and kidnap them and take them back and the free states can’t stop you — and of course you get Dred Scott, where the Supreme Court says you can’t ban slavery in the territories, you can’t stop people from bringing slaves into the territories, and also the descendants of slaves can never be U.S. citizens (which has got to be one of the worst things — probably is the worst thing — the Supreme Court has ever said, and one of the worst things any political actor has ever said in terms of race equality). It doesn’t stop with the Civil War. During the Reconstruction period, the Court is again quite strongly opposing racial equality. You’ve got about two decisions after the Civil War that tend to sort of gut the Reconstruction amendments and actually strike down some civil rights laws that Congress enacted to try and ensure racial equality. So Brown looks great, but it’s important to understand that Brown is really fulfilling the promise of the 14th Amendment, which was enacted almost 100 years before Brown, and the Court didn’t do anything with that until the social climate had changed and there was a powerful social movement arguing for equality.
Another thing is, when we think about Brown and race equality as the Supreme Court’s shining moment, and a great example of how it can lead us to our better selves, it’s worth paying attention to what the Supreme Court is saying about Brown now, what it says Brown stands for. Because what Brown stands for is no government consideration of race ever, basically, and the Supreme Court has had a bunch of racial equality cases, so race equality didn’t stop with Brown. It’s had a bunch of race equality cases recently, but they’ve all been about affirmative action and integration. Relying sometimes explicitly on Brown, the Supreme Court has said “No, you can’t do this. No you can’t use race as a factor in admissions to universities. No, you can’t use race as a factor in deciding where elementary school students will go if you’re trying to integrate your schools.” So if that’s the legacy of Brown, I think it turns out to be somewhat of a mixed bag, because the political process would eventually probably have gotten rid of segregation, if you had left that up to Congress. They could eventually probably have required the Southern states to integrate their schools, and you would have gotten a much more accommodating view of affirmative action. So to the extent that progressives care about affirmative action, the Supreme Court’s record is starting to look considerably worse.
Given that the Court has traditionally been a conservative force and one that halts or tries to reverse social change, how do you explain the current court’s relationship with LGBTQ rights? There’s a strain of conventional wisdom that says the Court is very friendly to gay rights, however reactionary it may be on other issues. How do you integrate the Court’s record on gay rights as of late with your overall view of how it functions in U.S. society?
I think “very friendly” is an overstatement. What I would say about that is, I guess, two things.
One is, what the Court does with social movements — and we see this with race equality and then we see it with sex equality and now, we’re seeing it with sexual orientation — is basically ratify the successes of those movements. So, there’s a certain period in time when a form of discrimination seems natural and justified, and most people would say, “Of course these people are different; you have to treat them differently.” Right? It happened with race; it happened with gender; it happened with sexual orientation. And during that time, if you bring an anti-discrimination claim to the court, the court will say, “This [discrimination] is appropriate treatment.” It says it with race in Plessy v Ferguson, it says it with gender in the Supreme Court case about denying women the right to practice law, where a concurring justice says this incredible thing about how women are too timid and delicate to be lawyers and should be wives and mothers, because that’s the law of the creator; and you see it with sexual orientation in Bowers v Hardwick. Justice White says that the claim that any anti-sodomy law is unconstitutional is, at best, facetious.
So while society doesn’t take these claims very seriously, these equality claims, the Supreme Court doesn’t take them seriously either. But then social attitudes change and at some point, if the social movement wins, the Supreme Court is going to come in and confirm what most of society already thinks, which is, “Wait — there is something wrong with this kind of discrimination. These people maybe aren’t so different, and there’s a Constitutional problem with treating them differently.” So that’s what we’re seeing with sexual orientation.
I would not say that the Supreme Court has been out in front of public opinion. I think that the Supreme Court recognizes the way that things are going and doesn’t want to be on the wrong side of history, and I think Justice Kennedy feels that especially acutely. I think that Justice Kennedy is very conscious of the verdict of history, and he wants to be remembered as someone with a deep sense of justice, not the narrow prejudices of his time.
You only get to five votes because of Kennedy, as far as I can see. This is not Brown; this is not the Brown Court, which was 9-0. If they had a same-sex marriage case now, I don’t think it would be unanimous. I’m pretty sure it would not be. I think that they would come out in favor of same-sex marriage if they heard it now, and I think they will within a few years, but it probably won’t be unanimous.
Is it historically the case that, in the pre-Warren Court era, American activists and progressives and, broadly, people pushing for social and economic change — is it the case that these people understood the Court to be in effect an enemy of theirs?
Yes, it absolutely is. So if you look at the political eras immediately preceding the Warren Court era, you’ve got the Progressive era in the early 20th century; Theodore Roosevelt was a president trying to implement progressive economic legislation, the Supreme Court is striking it down. And then, of course, you’ve got the struggle over the New Deal, where again the liberals are opposed to the Court, and basically the liberal view there is that government is a force for good, but by government we mean the legislature and the executive, and really, what we want the Supreme Court to do is get out of the way. There’s no idea that the Supreme Court could be leading a movement.
What would your response be to someone who, say, is a very hardline progressive activist and accepts your interpretation of the Court’s role within U.S. society and consequently argues we don’t need a Supreme Court and pushes to abolish it?
Oh, I think we do need the Supreme Court for lots of reasons. We need a Supreme Court to insure uniformity for one thing, in the interpretation of federal law and the Constitution, but I also do value the restraining influence of the Supreme Court.
Could you name an example or two of when the Court’s restraining influence was, from your perspective at least, for the good?
What we see over the broad sweep of American history is power concentrating within the presidency — and Congress, in part because of the party system, really does not seem competent to stand up to the president. But the Supreme Court can. So in the terrorism cases, in particular, the Supreme Court rejected an extraordinarily dangerous theory of executive authority which basically was, if the president thinks something is necessary for national security purposes, he can do it and no one can stop him. He can seize an American citizen within the United States, such as José Padilla, arrested in Chicago, and detain him indefinitely without access to a lawyer and interrogate him in any method he pleases, and no one can stop him.
If you don’t have the Supreme Court, who’s going to say no to that? Well, Congress might, if they’re controlled by the other party and they really have the will to do it. But if the president’s party has meaningful power in Congress, Congress is not going to stop the president, so you really do need an independent branch of government that is not as directly affected by the party system, which is the great virtue of the Supreme Court, I think. So a slightly broader way of putting this is: Our system was designed with separation of powers as the means of protecting individual liberty. Separation of powers between the president and Congress doesn’t work very well any more because of the party system. The party system has really affected Congress’s ability to check the president. The Supreme Court remains a meaningful check, and for that reason, if nothing else, it’s very important.