The Supreme Court Matters. A Lot.

David Cole reviews three recent books about the Supreme Court and points out the obvious, that the makeup of the Supreme Court, a direct result of which party controls the White House, has a massive effect on the nation. Just contemplate how differently the last 9 years might have gone:

Bush was reelected in 2004, this time without needing the Supreme Court’s help, and that meant that when Justice O’Connor announced her retirement and Chief Justice Rehnquist died in office in 2005, President Bush, not Al Gore or a successor, had the privilege of appointing two new justices and shaping the Court for years to come. Had a Democratic president been able to replace Rehnquist and O’Connor, constitutional law today would be dramatically different. Affirmative action would be on firm constitutional ground. The Voting Rights Act would remain in place. The Second Amendment would protect only the state’s authority to raise militias, not private individuals’ right to own guns. Women’s right to terminate a pregnancy would be robustly protected. The validity of Obamacare would never have been in doubt. Consumers and employees would be able to challenge abusive corporate action in class action lawsuits. And Citizens United v. Federal Election Commission, which struck down regulations on corporate political campaign expenditures and called into question a range of campaign spending rules, would have come out the other way.

In short, it would be a radically different country in many very important ways. That’s how important the court is in shaping the nation’s political reality, and how quickly it can do it. And one other clear element of the current court is to make it far harder for people to get access to the courts in their search for justice:

On one very important issue, however, the Roberts Court has been unremittingly conservative: access to judicial remedies for legal wrongs. At every stage, it has favored rules that make it more difficult to pursue justice in the courts, so much so that Tribe and Matz call it the “anti-court Court.” It has imposed higher “pleading” standards on complaints, ensuring that more lawsuits can be dismissed by trial judges at the threshold, before plaintiffs are able to obtain discovery from defendants. It has upheld contract provisions that require consumers and employees to pursue remedies against corporations through arbitration favored by employers rather than in court. It has presumptively barred classwide arbitration, even where that means that some forms of illegal conduct will never be remedied. This is the case, for example, when a corporation has fraudulently bilked thousands of consumers out of amounts of money too small to warrant individual litigation, while its standard contracts require that all disputes be arbitrated on a one-by-one basis.

The Roberts Court has also made it virtually impossible to bring class actions in federal court against employers based on unwritten discriminatory practices (and what employer these days has a written practice of discrimination?). And last term, it declined to hear a challenge to a secret NSA spying program, on the Catch-22 reasoning that plaintiffs had to show that they were actually under surveillance, a showing they could not make precisely because the program was secret.

The Court has radically pared back the “exclusionary rule,” the principal mechanism for enforcing Fourth Amendment rights. Before the Roberts Court took it up, the rule presumptively prohibited prosecutors from using evidence illegally obtained without a warrant in a criminal trial. The Roberts Court has limited the remedy of exclusion to intentional and deliberate violations, a standard that is all but impossible to meet for many unconstitutional searches. In addition, the Court has imposed strict procedural requirements on defendants who seek to assert their right under Miranda v. Arizona to remain silent, and has simultaneously made it easier for the state to demonstrate that defendants “waived” that right.

Because these decisions involve technical questions of civil and criminal procedure, they do not receive the public attention given to the Court’s highly publicized constitutional cases. But they are far more consequential, because they close off the courts to an almost infinite variety of legal wrongs. As Tushnet explains, the Roberts Court’s rulings on legal procedure reflect the fact that while the five conservative justices may differ on particular substantive questions of constitutional law—gay rights, speech, or privacy—they are united in their general skepticism about government regulation, including regulation by courts. They are much more likely to express concern about the costs of regulatory regimes than about the rights of those the regulations are designed to protect.

This attitude has profound significance for civil, political, and human rights. The Warren Court viewed the courts’ highest calling in a constitutional democracy as safeguarding those who cannot protect themselves through the political process. The Roberts Court, by contrast, prefers that courts have a much smaller part in regulating American life. In pursuit of that deregulatory agenda, it often leaves the vulnerable effectively unprotected. And on this issue, there has been virtually no “uncertainty.” In the end, what most defines the Roberts Court may be its hostility to courts themselves.

Exactly right. And this may be the real tragedy of the modern court, that it fails to do its job in this regard. It is sacrificing justice on the altar of procedural technicalities.

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  • doublereed

    This is why the people and legislature have to be more proactive about constitutional amendments to protect people’s rights in broad ways.

    Of course, even without Citizens United, we still would have Buckley v Valeo and First National Bank vs Bellotti.

  • D. C. Sessions

    If we were to amend the Constitution to clear those up, it’d take only one line:

    “In all rights guaranteed under this Constitution, the terms ‘person’ and ‘people’ shall refer exclusively to natural persons.’

    Doesn’t mean that you can’t have statutes granting essentially similar rights (after all, corporations are created in the first place by statutory law) but that the Constitution doesn’t trump statute in those cases.

  • doublereed

    Well there are two problems: Corporate Personhood and Political Donations. Even if corporations can’t donate to politicians, extremely wealthy people could still do so. That’s why there is also talk about Publicly Financed elections.

  • D. C. Sessions

    That’s why there is also talk about Publicly Financed elections.

    Which, you will note, the Roberts Court has also declared unconstitutional because it dilutes the Free Political Speech of money.

  • Chiroptera

    I just hope that this isn’t a sign that this is the major thrust of the Democratic campaigns. The Democrats haven’t historically been very successful running on a campaign of “the other guys suck way more than we do.”

  • Reginald Selkirk

    Just think what today’s court might be like of Bush had succeeded in getting Harriet Miers onto the court.

  • Sastra

    D.C Sessions #2 wrote:

    If we were to amend the Constitution to clear those up, it’d take only one line:

    “In all rights guaranteed under this Constitution, the terms ‘person’ and ‘people’ shall refer exclusively to natural persons.’

    Your intentions are good, but given the enthusiasm the Conservative Right has shown for citing “Natural Law” in order to condemn what they want to condemn and applaud what they want to applaud, I really, really would not want to see what they’d try to do with the definition of a “natural person” (as in “sure, a homosexual is technically a person … but not a natural person!”)

  • colnago80

    Re #6

    It’s not clear that Miers was worse then Alito. However, forget Miers. What would the court have been like if Robert Bork had been confirmed?

  • jameshanley

    On some of those issues I agree the Court got it wrong, on others I don’t. But overall, a lot of that list looks like “with judges like us our political agenda wouldn’t face any legal obstacles, hooray!” That is, while the statements are, I think, descriptively accurate, it really seems to tread into the territory of viewing the court as wholly political, rather than as an independent branch of government whose ostensible duty is to preserve the constitution from political encroachments.

    Sometimes that duty is inconvenient to our side, whatever side we happen to be on.

  • Michael Heath


    What you assert doesn’t seem at all relevant here unless we can determine that non-conservative justices are also prone apt to making fatally flawed arguments, just as we now observe the conservative justices doing. At least on the cases that have a significant impact on ‘we the People’.

    That’s what you seem to be insinuating here beyond what you write; that one side is no better than other. Is it? If not, then what’s your point beyond the obvious; that the majority gets it wrong sometimes, where we favor those in our own ideological camp.

    On the controversial cases that I perceive have a significant impact on us, I perceive the conservatives almost always relying on structurally defective arguments to make their case. Not a minority of the time, but almost always. That there is no close contest on the cogency of arguments between the conservatives vs. the non-conservatives. So I don’t find your argument relevant given this context, whether its what you wrote plainly read or what I perceive you to be insinuating.

    I’ve moved significantly left on constitutional matters over the past three decades. That’s partly due to non-conservative opinions being structurally sound and conservative arguments becoming increasingly absurd and sophomoric. So yeah, I’m predisposed to the arguments from the left, because they largely take at least arguable positions, where even an elementary understanding of critical thinking makes it easy to tear the conservative justices arguments to shreds. As Ed does here in his blog.

  • jameshanley


    You talk about having moved left on constitutional matters over the last three decades, but you’ve also moved left politically–it’s doubtful that your view on constitutional interpretation wasn’t shaped by that political move. That is, your perspective doesn’t come just from logic, and it certainly doesn’t come from a deep study of constitutional law, since you haven’t done that. It comes from your political preferences. What’s logical to you is what gives you the outcome that makes of the Constitution what you want it to be, and what’s illogical to you is what gives an outcome that makes of the Constitution what you don’t want it to be.

    Underneath your pseudo-sophisticated arguments about logic is a very pedestrian approach to the Constitution that is shared by the conservatives you despise. You have the same fundamental approach, but just have different perspectives on what the Constitution should be.

    Believe me, having taught constitutional law–and teaching American Government regularly–that perspective among students, from both the left and the right, is one of the most predictable and wearisome aspects of my job.

  • Raging Bee

    Hanley, if you’re trying to hint that Heath’s recent evolution on constitutional matters is somehow not rational or valid, you should probably base your insinuations on actually showing how Heath is wrong. If you can’t show where he’s wrong, then you can’t call him “partisan.”

    Believe me, having taught constitutional law–and teaching American Government regularly–that perspective among students, from both the left and the right, is one of the most predictable and wearisome aspects of my job.

    Your past history here, and on Scienceblogs, strongly imply that you’re functioning as a libertarian propagandist hack, who has been soundly disproven far more often, and more conclusively, than Heath ever has. If you find being a propagandist liar wearisome, you’re perfectly free to find another job.

  • jameshanley

    Hey, Raging Bee, how’s life? Hope all’s well with you.

  • Michael Heath

    James Hanley writes:

    your perspective doesn’t come just from logic, and it certainly doesn’t come from a deep study of constitutional law, since you haven’t done that.

    Well it’s a demonstrable lie I haven’t deeply studied constitutional law. My Amazon reviews of books on constitutional law reveals that to be false. I also don’t recall your ever demonstrating that my decades of studying constitutional law somehow wasn’t comprehended to the point your description above is true.

    You also criticize me in a way that avoids the topic I was discussing. I wasn’t making the case that non-conservatives are right and the conservatives are wrong, but instead, that the conservatives make fatally defective arguments while the non-conservatives generally don’t. That’s a far cry from your claim I side with non-conservatives from a “reactionary” perspective. And see my Heller illustration below; that just because I like non-conservative arguments doesn’t necessarily have me siding with the non-conservatives.

    From the Clinton years forward I’ve thought the Democrats were making decent policy arguments. But in most cases I still took positions that differed from theirs. My perception of conservatives and now libertarians taking indefensible positions while Democrats generally make good argument in no construes that I blindly side with Democrats. To assume that would be a fallacy of a false restriction of alternatives.

    James Hanley conjures up a false perception of what I do:

    What’s logical to you is what gives you the outcome that makes of the Constitution what you want it to be, and what’s illogical to you is what gives an outcome that makes of the Constitution what you don’t want it to be.

    Nice misrepresentation. No, I was instead reporting my perception of the quality of the arguments above. I never argued I necessarily agreed with those non-conservative opinions that were cogent simply because conservative arguments increasingly aren’t.

    For example, J. Scalia’s opinion in Heller was dependent on non sequiturs and an avoidance of the original meaning and intent of the 2nd Amendment. It’s not worthy of criticism but instead worthy of only ridicule. J. Stevens provided a very compelling argument on both the original meaning and intent in his dissent. So yeah, this is why I’m biased towards the non-conservatives on the court, because they don’t depend on fallacious hypocritical arguments but instead generally make compelling arguments.

    But if I were a justice in the Heller case I would not have joined Steven’s opinion. I would have instead wrote a concurring opinion siding with the majority. That’s because I don’t think the Constitution provides hardly any prohibitory power to limit our rights unless that power is expressly noted, or there’s a far superior competing right by others that can only be protected by such prohibitions – which the court describes as a ‘state interest’ – a phrase I abhor because it clouds the issue at hand. I don’t find the ingredients necessary in Heller for D.C. to have the authority to create prohibitory laws to the extent they did. So I still yield to the ‘presumption of liberty’ argument popularly espoused by Randy Barnett.

    And it’s ironic you claim I haven’t deeply studied constitutional law when in our very last engagement you made the false claim in a defective attempt to falsify my claim:

    [The free exercise clause] was not–in its origins–an individual right.

    False by claiming this with absolute certainty when in fact this is not an agreed-upon conclusion by constitutional experts. See Sandra Day O’Connor’s arguments that are summarized and analyzed here, which argue this right limited all levels of government prior to incorporation, not just the federal government. Cite’s title: THE ORIGINAL MEANING OF THE FREE EXERCISE CLAUSE: THE EVIDENCE FROM THE FIRST CONGRESS. VINCENT PHILLIP MUÑOZ*.

    I wasn’t citing O’Connor in my post in that thread, but again, a Barnett argument that challenges the conventional view on incorporation. Where I’m up to speed on the more conventional view of incorporation given my reading of Akhil Amar’s book on the Bill of Rights.

    It also doesn’t go unnoticed that you avoided my questions and criticism of your first post I responded while instead misrepresenting what I wrote and reporting on the imagined Heath in your head.

    James to me:

    Believe me . . .

    I abandoned belief a long time ago; I instead make conclusions based on facts. Here I find your post to me be either fact-free or your assertions are demonstrably false.

    A response to my post @ 10 that addresses your first comment post would be welcomed.