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If President Obama — or his successor — replaces the late Justice Antonin Scalia with a strong liberal, the Supreme Court’s balance will swing dramatically to the left in the coming years. It might well be the biggest ideological swing in recent memory.
Indeed, American politics has not seen a moment like this one since 1987. That was when the retirement of moderate Justice Lewis Powell, who was the pivotal vote on many big issues, left the court with four strong conservatives and four strong liberals. (The latter included Sandra Day O’Connor, whose votes through 1987 had been quite conservative.)
It was clear then that if the Democratic-majority Senate confirmed President Ronald Reagan’s first nominee, the very conservative Judge Robert Bork — as at first seemed likely — the court would swing hard to the right.
Bork himself later told me and others that he would have been the fifth vote to overrule Roe v. Wade and a lot more liberal precedents. But Democratic senators and liberal interest groups went all out to stop him and succeeded by a 58-42 vote.
The justices of the Supreme Court in 2010. Seated, from left: Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony M. Kennedy, and Ruth Bader Ginsburg. Standing, from left: Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., and Elena Kagan. (Photo: Pablo Martinez Monsivais/AP)
Now the court has four strong liberals, three strong conservatives and one less consistent conservative, Justice Anthony Kennedy. He sometimes joins the liberal bloc on issues including abortion, gay rights and the death penalty. Kennedy also happens to be the Reagan nominee whom the Senate confirmed after Bork’s defeat.
If and when a liberal replaces Scalia, therefore, the court will likely overrule or cut back sharply major conservative precedents including those limiting abortion rights, those restricting race-based affirmative action (in theory if not so much in practice) and those giving strong First Amendment protection to unlimited spending in election campaigns.
Below is a quick rundown of what the court might do — not necessarily in the next year or two, but perhaps within five or so years — if a fifth liberal tips the balance.
Race. A liberal replacement for Scalia would make a dramatic difference on racial issues, on which the court has long been deeply divided by 5-4, with conservatives in the majority, usually including Kennedy.
These issues include racial affirmative action preferences in state university admissions, government hiring and employment, and other walks of life; Justice Department supervision of state and local voting rights laws; and efforts to make it easier for poor and black people to vote.
Indeed, a liberal majority would almost certainly overrule the court’s application of “strict scrutiny” to “benign” racial preferences since 1978 and disregard its 2003 suggestion that racial preferences in state university admissions must end within 25 years, by 2028.
The effect could be to ensure that racial preferences — a major priority of Democratic interest groups — will continue well past 2050 and perhaps far into the next century.
Eric Holder, Obama’s first attorney general, spoke for many liberals when he asserted in 2012 that the previous 40 years of racial preference programs had been “a relatively small period of time in which African-Americans and other people of color have truly had the benefits to which they are entitled.”
Holder continued: “I can’t actually imagine a time in which the need for diversity” — engineered, he implied, by racial preferences — “will ever cease.”
Kennedy has sought (without much impact) to limit racial preferences in state college admissions and other government programs, while stopping short of joining Scalia and other conservatives in seeking to outlaw preferences. A liberal replacement for Scalia would cement a solid 5-4 majority for broad approval of racial preferences.
Aggressive federal judicial efforts to force more spending on inner-city schools, which the court blocked in a big 1973 decision, might also be revived. On the other hand, liberals might be restrained by the fact that many urban school districts already spend more per student than ever before, and more than many prosperous suburban schools.
Campaign finance regulation. A liberal replacement for Scalia would probably work a sea change on campaign finance regulation. The 5-4 Citizens United decision in 2010, a target of liberal disdain for upholding corporations’ First Amendment rights to spend unlimited amounts on campaigns, would almost surely be overruled.
The court would also likely sweep away other precedents upholding unlimited “independent” campaign spending. This would gratify Democrats and to a large extent protect incumbent elected officials.
But it would be seen by many Republicans as designed to solidify the Democratic advantage that, they say, comes for free from campaign coverage and commentary the unregulated, predominantly liberal mainstream news media. Congress has exempted media corporations from restrictions on spending in support of candidates.
A rally in Washington in 2015 calling for an end to corporate money in politics and marking the fifth anniversary of the Supreme Court’s Citizens United decision. (Photo: Drew Angerer/Getty Images)
Other free speech issues. A liberal replacement for Scalia might well foreshadow Supreme Court support for speech codes and other limitations on controversial speech — seen by some as sexual or racial harassment — that the Obama Education Department and many universities have imposed on students.
The court has not so far been active in this area. But the issue is bound to come before it in the next few years. More generally, while liberals were more friendly to free speech than conservatives for most of the 20th century, the reverse is now true.
Abortion. Constitutional abortion rights have long rested on a precarious 5-4 majority, with Kennedy joining the four liberals on some (not all) key votes. A liberal replacement for Scalia would guarantee almost unlimited abortion rights, probably far into the future.
Freedom of religion. A liberal replacement for Scalia would probably be the fifth vote to overrule the 2014 Hobby Lobby decision and require religious employers and other groups to provide health insurance including free contraceptives and take other actions that they say violates their freedom of religion.
Environment. A liberal replacement for Scalia might well reverse decisions including the court’s 5-4 ruling last week temporarily blocking the Obama administration’s effort to combat global warming by regulating emissions from coal-fired power plants.
Federal power. A liberal replacement for Scalia would cement a majority to sweep away virtually all limits on federal regulation of the economy, many of which have been dismantled already in the Obamacare decisions, with John Roberts, the usually conservative chief justice, writing for the otherwise-liberal majority.
Gun rights. A liberal replacement for Scalia might be the fifth vote to cut back on or overrule the 2008 Scalia majority opinion in District of Columbia v. Heller and subsequent Supreme Court decisions recognizing a constitutional right to keep and bear arms.
Death penalty. A liberal replacement for Scalia would insure invalidation of more death penalty laws, although not necessarily complete abolition of the penalty. The court has already struck down various death penalty provisions while narrowly upholding others, such as a 2015 decision allowing use of execution drugs that were alleged to cause excruciating pain. That decision, among others, could be overruled or pared back to its specific facts.
National security. A liberal replacement for Scalia might increase the already unprecedented judicial intervention into national security matters that the court pioneered in three liberal decisions (joined by Kennedy) involving the George W. Bush administration’s detention of suspected terrorists in Guantanamo.
For most of our history, national security issues were treated by the court as almost the exclusive province of the president and Congress. That changed under Bush. If a liberal replaces Scalia, the justices might well become bolder in second-guessing presidents — Republicans especially.
Importing foreign law into constitutional interpretation. A liberal replacement for Scalia would open wider the doors to using foreign law to interpret (some say “amend”) the meaning of the U.S. Constitution. This has been a trend favored by the liberals (and Kennedy). Scalia has been the most vocal opponent.
Would respect for precedent restrain a liberal majority? Not much, or not for long, probably. While nominees habitually and sincerely vow to respect precedents during their confirmation hearings, the vows have been a bit misleading. Liberal and conservative justices alike have long been ready severely (if respectfully) to limit or to overrule constitutional precedents they don’t like, while seeking to avoid outright overruling until the precedent has been on the books for a few years.
This is consistent with the views of many legal scholars that because constitutional precedents cannot normally be overruled by Congress, and should not be treated as though written in stone, they should be subject to reconsideration by the court.
To be sure, the justices have traditionally been very reluctant to overrule the court’s statutory interpretations, on the theory that Congress can overrule any statutory precedents it does not like and that therefore the court should leave them alone for the sake of stability and predictability in the law. Constitutional precedents are different.
Furthermore, both liberals and conservatives have proved adept, when they have the votes, at the technique sometimes called “stealth overruling.” Precedents once thought to sweep broadly are read so narrowly that the dominant thrust of the law becomes the exact opposite of what it was before.
Might there be a compromise on a moderate nominee? Unlikely, in these polarized times, unless one side holds out an olive branch to the other early in the process. Behind the scenes, Republicans are well aware that both of President Bill Clinton’s appointees — Ruth Bader Ginsburg and Stephen Breyer — seemed to be moderate liberals when nominated but have ended up solidifying the liberal bloc.
Only that disappearing breed — the moderate senator willing to work across the aisle in the larger national interest, or a president more interested in actually getting someone onto the court than in getting his ideal candidate — could begin to broker a deal.
In the absence of a quietly brokered deal involving sacrifice by both sides, anyone whose views on any big issue are known could probably not get past both the White House and the Senate, this year or in the foreseeable future. And anyone whose views are totally unknown would be seen by both sides as too big a risk.
Stuart Taylor Jr. covered legal affairs for the New York Times, American Lawyer, Newsweek and National Journal and is co-author of the book “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.”
Cover tile photo: Manuel Balce Ceneta/AP