In 1992, according to an article in The Times, Justice Clarence Thomas told two of his clerks that he planned to remain on the court until 2034.
Why 2034? one of them asked.
“Liberals made my life miserable for 43 years,” Thomas replied, “and I’m going to make their lives miserable for 43 years.”
Once Amy Coney Barrett takes her seat, Thomas’s prospects for imposing misery will brighten considerably. Of course, Thomas is not the key player here, but only one participant in the conservative movement’s four-decade struggle to wrest control of the judiciary from a once powerful liberal legal establishment.
Armed with an originalist doctrine that enables subjective interpretation of the Constitution, and supported by a growing willingness to overturn precedent by jettisoning the principle of stare decisis (“to stand by things decided”), the Supreme Court will be able to knock down what remains of the liberal legal edifice constructed by the Warren Court from 1953 to 1969.
What is this movement banking on? White resentment of the civil rights movement, corporate opposition to the regulatory state, a growing property rights movement in the Western states and the anger of social and religious leaders over abortion rights and what they perceive as an assault on religious liberty by the state.
If she is confirmed, Barrett will almost certainly strengthen a legal insurgency that challenges race-conscious remedies in civil and voting rights litigation; threatens not only abortion rights but also access to some forms of contraception; disputes the legitimacy of independent federal agencies; and weakens divisions between church and state.
The right has devised new doctrines to justify conservative rulings, flooded the courts with an expanding cadre of judges and legal scholars, financed a host of legal firms to challenge liberal laws and liberal rulings, and built a multimillion dollar network of tax-exempt groups to promote its agenda.
The conservative legal revolution, which first took off in the late 1970s, caught the Democratic powers-that-be asleep at the switch. As Steven Teles, a political scientist at Johns Hopkins and a senior fellow at the Niskanen Center, argued in his 2010 book, “The Rise of the Conservative Legal Movement,” the left had begun to lose touch with the electorate:
Grassroots liberalism was shrinking, while its forces at the elite level — in the professions, universities, the media and Washington-based public interest organizations — were surging. These liberal elites, and the Democratic Party of which they were an increasingly central part, were of little use at election time.
In gearing up to challenge the legal left, Teles wrote, conservatives faced hurdles more difficult to overcome than in other arenas, including Congress:
Reversing liberal accomplishments in the law was more strategically problematic than other conservative goals, such as reducing taxes and stiffening the American response to the Soviet Union. While relatively little elite mobilization was necessary to translate electoral victories into policy outcomes, in the law, conservatives faced liberal opponents with a much more impressive set of resources: elite law schools, a large chunk of the organized bar, a vast network of public interest lawyers and the still-powerful liberal understanding of rights. If they were to have any chance of influencing the development of law, they would have to compete with liberals at the level of organizational, and not simply electoral, mobilization.
Conservatives, although initially poorly organized, had constituencies ready and waiting to be mobilized. Teles describes them this way:
Business hated the courts for legitimating and accelerating the expansion of the federal regulatory state. Western farmers, ranchers and extractive industries detested them for limiting their use of federal lands. Southerners continued to resent their part in dismantling segregation. Northern ethnic refugees from the Democratic Party seethed at the “forced busing” mandated by judges like Massachusetts’s Arthur Garrity. Religious conservatives were enraged by the Supreme Court’s constitutional sanctioning of abortion and its restrictions on school prayer. While their particular grievances differed, the conservative coalition was drawn together by opposition to liberal judges, professors and public interest lawyers.
At the same time, Teles — described by The Wall Street Journal as a “liberal political scientist” — contends that the success of the conservative legal movement has been based not just on money and effective organization, but also on the merit of its analysis.
In his book, Teles wrote:
I take seriously the argument that conservatives have found greater success in the law because their ideas — such as the negative side-effects of state planning and regulation — were shown over time to be superior to those of their liberal counterparts.
The intellectual and organizational foundation for the conservative takeover of the federal judiciary expanded with time.
Steven Calabresi, co-founder of the Federalist Society, was working in the mid-1980s for Ronald Reagan’s Attorney General, Ed Meese, in the Office of Legal Policy. In a series of memos to Meese, Calabresi faulted the traditional conservative commitment to “judicial restraint,” arguing instead for a very different approach, the aggressive application of the theory of “originalism.”
“The courts and the executive must start using their constitutional powers to hold the Congress within its proper constitutional sphere,” Calabresi wrote in a memo to Meese.
Calabresi has separately written about originalism:
Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision. The original meaning of a constitutional text is an objective legal construct like the reasonable man standard in tort law.
Liberal scholars sharply dispute this view. Geoffrey Stone and William P. Marshall, law professors at the University of Chicago and the University of North Carolina, wrote in 2011:
Judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence. There is no evidence, for example, for the claims advanced by originalists that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment guaranteed corporations a constitutional right to spend unlimited amounts of money to dominate the election of public officials. Both of these claims, however, are central to today’s conservative constitutional agenda.
In this view, it is originalism that lends itself to subjective interpretation that could enable jurists of all ideologies to reach almost any sought-after conclusion.
In an intriguing account of the intellectual ferment in the Justice Department during the Reagan administration, Calvin TerBeek, a doctoral candidate in the University of Chicago political science department, argues that in January, 1987:
David McIntosh — also a co-founder of the Federalist Society — wrote to Meese that the Office of Legal Policy should explore “whether it was not simply ‘independent agencies’ ” that conservatives should challenge as unconstitutional, but also “agencies such as the Environmental Protection Agency.”
Even more aggressive, TerBeek wrote, “were ideas for a constitutional amendment that would add ‘expressly’ to the Tenth Amendment and allow for ‘Collective state repeal of federal law’. ”
The elite constituency of conservative ideologues and rich donors that draws up the approved list of candidates to fill judicial vacancies does so behind closed doors with little transparency.
Senator Sheldon Whitehouse, Democrat of Rhode Island, has become a leading critic of the power brokers who produce these lists of acceptable judicial nominees and of the pro-business tilt of Supreme Court decisions. In an interview, Whitehouse described the process of selecting judges under Trump to me.
First, Whitehouse noted, “the selection of possible judges is run through the Federalist Society under the guidance of Leonard A. Leo.” Once the president makes his choice, Whitehouse continued, “the Judicial Crisis Network goes to work, running TV campaigns funded by anonymous donors.”
In fact, on Sept. 26, the network announced that it would spend “at least $10 million” in support of Barrett’s Supreme Court nomination.
Along similar lines, Casey Maddox, senior policy fellow at Americans for Prosperity, the dominant group within the Koch family network — which also does not disclose its donors — told CNBC that
A full scale campaign is now underway to mobilize our grass roots activists across the country to drive the confirmation of Judge Amy Coney Barrett to the high court.
Not to be outdone, the United States Chamber of Commerce told Axios that it will be organizing members and others through social media to lobby Congress on Barrett’s behalf. In an effort to pressure moderate and centrist Democratic senators who want to appear pro-business, the Chamber will use the vote on Barrett in their public ratings of members of Congress.
“You have to draw the conclusion that the court is the least democratic of all institutions,” Whitehouse told me.
In a Sept. 25 oped in The Washington Post, “Shifting from a 5-4 to a 6-3 Supreme Court majority could be seismic,” Leah Litman, a law professor at the University of Michigan, and Melissa Murray of N.Y.U., made the case that with the addition of a sixth member,
the court’s conservative bloc will be able to afford to lose a vote and still prevail, reducing the need for narrower decisions, compromise and forbearance.
They pointed out with Barrett on the court it will be easier to find five potential votes to reverse Roe v Wade, the key 1973 abortion decision and that
Even if Roe isn’t immediately overturned, a stronger conservative majority could let stand other abortion restrictions that come before the court, including bans on certain procedures or abortion after 12 weeks of pregnancy.
The court, in Shelby County v. Holder, has already severely weakened the 1965 Voting Rights Act, Litman and Murray noted, and a strengthened conservative majority could go a step farther and
invalidate what remains of the act, including Section 2, which provides for restrictive voting laws to be struck if they result in discrimination, with or without intent.
The 6-3 court, they write,
would be poised to exempt religious objectors from complying with statutes that prohibit discrimination against racial minorities, women, the disabled, religious minorities and the LGBT community.
In addition, such a reconfigured court would likely challenge “race-conscious university admissions policies.”
In an email, Litman described some of the intellectual jujitsu the conservative bloc will have to resort to in order to achieve these goals:
To overturn Roe v. Wade, the majority would have to explain why overruling the decision is consistent with stare decisis. Justice Thomas and Judge Barrett have written about how stare decisis itself can violate the Constitution and Justice Gorsuch has been critical of stare decisis, a sign that they are more inclined to overrule decisions with which they disagree, since they think the legal rule that compels them to do otherwise is wrong.
If the conservative bloc seeks to declare legislation mandating contraception coverage unconstitutional, Litman continued, it would have to argue that
the mandate violates the Religious Freedom Restoration Act (a statute that prohibits substantially burdening religious practices through anything besides the least restrictive means) or the First Amendment’s free exercise clause.
If, in turn, the conservatives choose to argue that the mandate violates the First Amendment, Litman wrote in her email,
the Court would have to overrule Employment Division v. Smith, which held that generally applicable statutes (statutes that don’t single out particular religions) are generally constitutional. But Gorsuch, Alito, Thomas and Kavanaugh have all indicated they would be inclined to revisit that decision, and Judge Barrett has criticized it as well.
Some members of the court, Litman noted, have shown interest
in declaring that laws that prohibit policies with disparate impacts (policies that are selectively disadvantageous to racial minorities, but were not intended to be selectively disadvantageous) are unconstitutional.
The conservative argument is that because a
statute “requires”’ governments to take into account the racial effects of a law or policy, the law requires them to discriminate on the basis of race in violation of the equal protection clause.
All of which suggests that the most significant contribution Barrett will make to the continuing rightward shift of the court will be on stare decisis.
Ruth Marcus a Washington Post columnist, wrote on Sept. 26 that
No issue is more pivotal in considering a Supreme Court nomination than the candidate’s view of when to overturn a case she considers wrongly decided.
No other nominee to the court, Marcus continued,
has openly endorsed views as extreme as Barrett’s on the doctrine of stare decisis, the principle that the court should not lightly overrule its precedents. In a series of law review articles, Barrett makes clear that in matters of constitutional interpretation, she would not hesitate to jettison decisions with which she disagrees.
Marcus cited Barrett’s own writing in a 2017 Notre Dame Law Review article, “Originalism and Stare Decisis”:
For an originalist, the decision whether to follow erroneous precedent can be more than a matter of weighing the costs and benefits of change. At least in cases involving the interpretation of constitutional text, originalists arguably face a choice between following and departing from the law embodied in that text. While the debate about stare decisis is old, modern originalism introduced a new issue: the possibility that following precedent might sometimes be unlawful.
Laurence Tribe, a professor of law at Harvard, argued on Twitter:
Taking Amy Coney Barrett at her word makes clear that she would feel quite free to reconsider Roe v. Wade. This is a very big deal. I doubt anyone on Trump’s short list would hesitate to overrule, but not everyone on the list is as transparent about it.
Other legal scholars do not believe that Barrett has taken an extreme position on stare decisis.
Barrett “approaches stare decisis from a practical perspective” in her extensive academic writing on the topic, Saikrishna Prakash, a law professor at the University of Virginia, told Bloomberg Law. “She doesn’t ever say that the courts should be overturning a bunch of precedents.”
What does this all boil down to?
Needless to say, the prospect of six conservative members of the Supreme Court, appointed for life, has provoked deep anxiety in both the center and the left.
Not only do liberals see a court determined to demolish past rulings, they fear that if Democrats win control of the White House and Congress, the court will rule future liberal initiatives unconstitutional, as it did in the 1930s in response to F.D.R.’s New Deal.
This prospect is driving leaders of progressive interest groups to the brink.
Sherrilyn Ifill, president of the N.A.A.C.P. Legal Defense Fund, declared that the nomination of Barrett comes at a time when
We are already in a constitutional crisis. The president of the United States has refused to commit to the peaceful transfer of power should he lose the election, celebrated attacks on journalists and protesters, encouraged his supporters to vote more than once and defended white supremacist terrorists.
Vanita Gupta, president and chief executive of The Leadership Conference on Civil and Human Rights, is similarly alarmed:
We are in the middle of a global pandemic that has devastated millions of lives. Trump and Senate Republicans have refused to do anything to alleviate the pain and suffering. They refuse to address the systemic racism and injustice that permeates our society.
According to Michelangelo Signorile, a gay rights proponent who publishes the Signorile Report, “This is a five-alarm fire for LGBTQ Americans.”
In short, we are looking at a conservative movement determined to exercise the judicial authority it has struggled for decades to win against a Democratic Party consumed by a burning sense of injustice.
This can be the kind of struggle in which blood is shed — irregular warfare with no winners. But as the sociologist Lewis Coser, author of “The Functions of Social Conflict,” wrote in 1956, conflict can also have an integrative function and “prevent the ossification of the social system by exerting pressure for innovation and creativity.”
The strength of the Trump movement, even as it may be on the wane, suggests that as a counter measure, liberals might seek to create a broader consensus on strategically significant points, particularly those that provoke the most contention, until a leader like Trump is no longer viable or electable.
Insofar as politics is the continuation of war by other means and not the other way around, there is also the possibility of the resolution of disagreements once thought to be irresolvable — the possibility, in other words, of progress.
But first we have to get through an election.
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