Throughout his years as a national politician and in the White House, President Barack Obama has had many antagonists and foes: John McCain, Mitch McConnell, Mitt Romney, Eric Cantor and John Boehner come to mind. But despite their greater public profile, one could argue that none of these men have been quite as formidable a source of opposition and frustration as the five conservative justices on the Supreme Court.
Indeed, the closest Obama's signature achievement, the Affordable Care Act, ever came to destruction was not in the House or in the Senate. It was behind the closed doors of the justices' chambers, where it survived in 2012 by just one vote, and where, due to King v. Burwell, the latest case against Obamacare, it finds itself imperiled once again. The greatest threat to the Obama agenda, in other words, has manifested in the form of a purposefully opaque institution, and in the persons of five unelected conservative men.
Unsurprisingly, this state of affairs has led many a liberal or even moderate Democrat to pull their hair and grind their teeth out of aggravation. And when compared to the Supreme Court of the 1950s, 1960s and early 1970s, which most progressives think of as a source of comfort and power for society's downtrodden, the Roberts court looks anomalous indeed. But what if it's the mid-20th century court, and not that of today, which stands as the exception to the rule? What if the Roberts court is more in keeping with U.S. history than liberals tend to think?
That's the argument that Ian Millhiser, a senior fellow at the Center for American Progress Action Fund and the editor of Think Progress Justice, makes in his new book, "Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted." As Millhiser sees it, the Supreme Court has spent most of its existence standing athwart history, yelling, Stop! From gutting the civil rights acts of the post-Civil War era to attacking business regulations to weakening protections for children, minorities and immigrants, the court Millhiser describes has much more often than not worked to return power to those in society who need it least, and abuse it most.
Recently, Salon spoke over the phone with Millhiser to discuss his new book as well as his thoughts on the Obamacare case currently in front of the court, the legitimacy of the institution, and why the next presidential election will have such a large impact on whether the court of the foreseeable future is one that fights progress, or acts as its shepherd. Our conversation is below and has been edited for clarity and length.
The Supreme Court has been a source of controversy for a long, long time. But what was it in particular that you wanted to get across with this book?
The notion that the Supreme Court has been a malign force in American history is by no means a new one. It dominated President [Franklin Delano] Roosevelt's rhetoric on the Supreme Court; it was the reason why many of the liberal justices on the Supreme Court were reluctant to to vote the right way on Brown v. Board of Education, because they were so fearful of judicial power that they were afraid to exercise it. It's only fairly recently that liberals have come to think of the Supreme Court as something we shouldn't view with extraordinary trepidation.
I wrote this book in large part because I think people — and not just liberals, not just people who think we should have things like child labor laws and Medicare — have lost an important understanding of our history. Meanwhile, people who want to dismantle a lot of the progress of the 20th century are busy building an alternative mythology about the Supreme Court that is very harmful and that we have not yet been effective in countering.
You mentioned how conservatives like to claim or imply that the Constitution prescribes a libertarian government. Why is that narrative mistaken?
The conservative mythology I keep referring to is basically a mythology of original sin. Their narrative is that government is something that the Constitution was very skeptical of and everyone understood this until Franklin Delano Roosevelt came along and tried to pack the court with up to 15 Justices in order to break the back of this understanding of the Constitution. That moment where the court gave in and allowed the New Deal to exist, that is the original sin in the conservative narrative.
The reality could not be more different. The reality is that George Washington, in the midst of the Revolutionary War, was tossing off angry letters saying that Congress didn't have enough power to act and he wasn't going to win this war if they didn't have a more responsive national government. He and others pushed for a more expansive role of government. At the Constitutional Convention, the framers passed a resolution saying that a national government has to have full powers to do everything that the states are not competent enough to do on their own — and one thing the states aren't capable of doing on their own is regulating a national economy.
Let's move away from history for a moment to talk about the present court. Granting that the court, historically, has much more often been an enemy of progress rather than a friend, where would you rank the current Roberts Court?
I think what the Roberts Court is going to be remembered as is a transitional court. The Roberts Court is really bad; Citizens United is terrible, and striking down the Voting Rights Act is terrible. But compared to what has come from most of the Supreme Court's history, it's actually a lot better.
There are two things at play right now that are going to impact the future of the Supreme Court. At the last national conference of the Federalist Society, a very influential conservative legal group, there was a panel on rolling back anti-discrimination laws and repealing the minimum wage. This is the place where lawsuits like attacks on the Affordable Care Act, like Hobby Lobby, etc., are incubated and where conservative lawyers get together and refine their ideas before they get their friends on the Supreme Court to turn them into law.
The Federalist Society, which is going to have a tremendous impact on who the next Republican president nominates for the Supreme Court, is raring for a return to the bad old days, to the era where the Supreme Court viewed its job as engaging in wholesale skepticism of business regulation. If they succeeded in getting the ear of the next president — and they did have the ear of President George W. Bush and previous Republican presidents — we're going to be in for a wild ride.
Why else do you see this court as being transitional?
The second thing to keep in mind is that there are four justices right now over the age of 76: Justices Scalia, Kennedy, Ginsburg and Breyer are all in their late 70s or early 80s. When the next president is sworn in, there will be three sitting justices in their 80s — assuming none of them leave before then— so there's a very real chance that the next president of the United States could replace four justices.
There's already a fifth justice on the Supreme Court, Clarence Thomas, who has said that he agrees with [the pre-New Deal court's worldview] and the legal argument that was used to attack the Civil Rights Act of 1964; so if he got his way, we probably couldn't have a ban on whites-only water fountains. Right now, the fact that there's one justice who embraces this radical anti-government vision doesn't seem all that scary. But if four more get up there, we could be on the bridge to the 19th century right now.
At the same time, if those four justices are replaced by someone who thinks more or less the same way our current president thinks, then we could have, for the first time in my lifetime and for the second time in the Supreme Court's history, a court that is very much interested in letting individual rights flourish, in letting voting rights flourish, and in allowing our democracy to function without having ideological justices second-guessing the decision that are made by the people and their representatives.
One question that occurs to me now, and which has been in the discourse about the court for the past few years, is the idea of "legitimacy." If the current court ends up tarnishing the institution's legitimacy, that might affect how the next court can operate. But legitimacy is pretty vague concept. Do you think it's real? Or is it one of those messy ideas we use without adequate interrogation?
That's a very timely question because there's this King v. Burwell case in front of the Supreme Court seeking to gut the Affordable Care Act. If that case prevails, an estimated 10,000 people are going to die every year who otherwise would have lived. In addition to that, the legal theory they would use to gut Obamacare is not a bit of a joke; it's a huge joke; it's a ridiculous theory. People are very much talking right now about this question of whether we even want the Supreme Court to have this kind of power and whether they are truly legitimate if, based on such a ridiculous legal theory, they could produce such an evil result.
How unprecedented is it that people are talking about the court this way?
The one other time when you saw serious talk about that question come up was during the Roosevelt administration, when you had this huge national crisis, the Great Depression, going on. Roosevelt was doing everything he could think of to restore economic order, and the Supreme Court kept striking it down. In the midst of that tragedy, not only were there serious questions about the court's legitimacy, but Roosevelt went so far as to propose adding Justices to the Court in an effort, basically, to neutralize it.
Do you think that kind of pressure works? That the court is less radical if it feels like it's being closely observed and will come in for significant criticism if it's seen as overstepping its bounds?
I do think it's the case that at least certain members of the court in the past have become reluctant to do things that are both immoral ... when they realize that people are looking over their shoulder — and that people are more likely to look over their shoulder when the results they would produce are particularly tragic.
That's why I want people to be aware of the consequences. I want people to be terrified of the Supreme Court because we've seen over and over again throughout history that when they go off the rails, the results are absolutely disastrous for ordinary Americans.
How do you feel about proposals for reforms to the Supreme Court, like changing it so justices don't serve in perpetuity but have fixed term limits? Do you think that's a workable solution? Or is it not really adequate to the task?
I don't think term limits are going to solve the problem, even if we manage to get them through; I think there is sort of a backhanded way to do it without a Constitutional amendment, but it would take a really long time. The fact remains that Justice Scalia is the longest-serving member of the court and he's pretty terrible; but Justice Alito hasn't been there very long, relatively speaking, and he's even worse. I don't think there's a correlation between the tenure of the Justice and whether they're a good or a bad Justice.
One of the main things you focus on in the book is that Supreme Court decisions have real-world consequences for regular people — and they've often been bad. What do you think of the argument raised by some, perhaps most prominently Dahlia Lithwick, that the court would be more likely to understand the human stakes if it weren't comprised of so many law school all-stars, and had more politicians, as used to happen, instead?
I love Dahlia Lithwick; she may be the single best writer in the Supreme Court issues space. I disagree with her on this point, though. The reason why is because the court has almost always been terrible; it was terrible when you had brilliant scholarly and very dastardly men like Stephen Field leading the charge to dismantle the regulatory state, and it's been really terrible when you had ignorant bigots like James Clark McReynolds.