Despite the outraged cries of Democrats, I think a conservative successor to Justice Anthony Kennedy will probably be nominated and confirmed. Commentators have seized upon the key role of Senators Susan Collins and Lisa Murkowski, but there are several ways that the Administration might found around the obstacle that they represent. The pressure upon them will be great, and they might pronounce themselves satisfied by a nominee's promise to respect precedent. Three vulnerable red state Democrats up for re-election--Donnelly in Indiana, Heitkamp in North Dakota, and Manchin in West Virginia--might vote to support the nominee, as they did, I believe, to support Neil Gorsuch. The math may also change if a new Senator has to be appointed from Arizona. I am not sure who is running the Trump Administration's strategy team for judicial appointments, but he or she appears to be the most effective member of the Administration. The New York Times today includes an extraordinary story of how Justice Anthony Kennedy has been successfully encouraged to step down now. The same care will be exercised to ensure his successor's confirmation.
If in fact a conservative justice is appointed, it will, I think, mark the end of an era that began in 1954. During the next six and a half decades, an educated elite used the court system to turn its values on a number of key issues into national policy. Don't misunderstand me, I am a charter member of that educated elite myself, and on most issues those values are my values as well. But there has never been a real consensus around many of them in the country at large, and the attempt to impose them has had a lot of very negative consequences. In the long run, returning the Supreme Court to a lesser place in our system might make for a healthier democracy.
The road to hell is paved with good intentions, and this process began with Brown v. Board of Education, a decision with which very few Americans would now disagree. In the wake of the Second World War, fought for the principle of the equality of all men and women, the United States, I agree, had to end legal segregation. Yet the struggle over the implementation of that decision was, and remains, a powerful signal of the dangers of change by judicial fiat. Race once again became not the main, but the only, issue in the politics of the Deep South, and white southern liberals rapidly became an extinct species. The deep South unleashed tenacious resistance, and not until 1969, 15 years later, did Mississippi begin to desegregate its schools. Christian schools immediately sprung up for white children in much of the state, and today schools in rural Mississippi are often just as segregated as they were in 1954. The impact of the decision has been limited--although hardly negligible--all over the country. The vast majority of children, white, black, and Hispanic, today attend schools composed mostly of members of their own racial group. Meanwhile, the decision in Brown v. Board of Education led to an epidemic of signs on southern highways calling for the impeachment of Chief Justice Warren (I saw at least one driving to Florida in 1964), and by 1968, Richard Nixon was running on promises to appoint "strict constructionists" to the Court as part of his southern strategy.
The battle over school integration continued over the next few decades on two other fronts: school busing to achieve integration in cities, and affirmative action to increase minority enrollment in colleges. The courts backed both at different times--they no longer, apparently, back busing--even though both have been very unpopular even in the most liberal states, such as Massachusetts (busing) and California (where a statewide referendum in the 1990s overwhelmingly rejected affirmative action in admissions to the UC system.) These, surely, are issues where the educated elite and the civil rights movement used the courts to impose their views on a hostile population, with long-term political consequences.
The Warren Court issued a number of other very important decisions that have not been so controversial in the long run. Baker v. Carr ordered states to apportion their legislative districts equally--a decision that the court reached on the very proper basis that the result could not possibly have been brought about in any other way. A series of decisions--Gideon vs. Wainwright, and the Miranda and Escobedo cases--guaranteed defendants a lawyer at state expense, and forced law enforcement to observe strict rules about interrogations. Other decisions excluded unlawfully obtained evidence and forced the prosecution to provide exculpatory material. Some of these have also had less impact than they might have, and Gideon, in particular, is nearly a dead letter in much of the country because governments will not provide the resources necessary to provide public defenders. But although some of these decisions also fueled Republican rhetoric, they cannot be compared in their political impact either to Brown or to the court's next big move Roe v. Wade in 1973.
I supported abortion rights early in 1973, as I do now, but I was startled in January of that year when the Supreme Court voted 7-2 that the Constitution contained an implied right to abortion. This was not the first step towards legalization of the procedure. Both New York and California--then our two largest states--had passed laws legalizing it in recent years, and it was certainly possible that other states might follow. And to find the right to abortion in the Constitution, the Court had to rely on a relatively obscure doctrine of "substantive due process," which allowed it to declare a right that was not enumerated in the Constitution. It was not, in short, immediately obvious to an intelligent lay person--and I continue to think that it is not obvious--that Roe V. Wade was in any sense inevitable given the text of the US Constitution. It is equally clear, in my view, that the Constitution does not ban abortion.
For proponents of abortion rights, however, the Constitutional issue was secondary from the beginning, while feminist conceptions of rights were primary. 1970s feminism refused to allow women to be defined by their role as mothers and insisted, in effect, that the choice to become a mother should be theirs alone. No less an authority than Ruth Bader Ginsburg, in her confirmation hearing, declared that without the right to abortion, women could not be equal to men--presumably because men did not have to face pregnancy. And as tribalism (including tribalism based on gender) has taken over our politics, liberal women have become more and more insistent that the right to abortion is as fundamental as any right in the Constitution, whether it can specifically be found there or not. Yet that view, obviously, has never won the assent of many millions of Americans who reject abortion on religious and other grounds--including millions of women. That presumably is why the language of the abortion rights supporters has continually evolved, from pro-abortion to pro-choice to, now, "reproductive rights." Perhaps some ambivalence even among supporters of abortion has also played a role in this.
A vehement anti-abortion movement became a pillar of the Republican coalition in the 1970s, as the Republican Party successfully created a new majority in the 1980s. Many on the left undoubtedly believed that opposition to abortion would fade with the passage of time, but that has not happened. In much of the country it has become harder and harder to obtain a legal abortion, so hard that dangerous, back-alley procedures have made a comeback. State legislatures in red states continue to pass laws to make the procedure more difficult to obtain. Bills to outlaw the procedure would easily pass many of those legislatures and would probably pass the U.S. House of Representatives, though not the Senate, today. Like Brown v. Board of Education, Roe v. Wade has had very limited success both in securing, and even more in building a consensus around, the new right that it established.
Several new developments in this story of judicial power have marked the 21st century. Republican judges also adopted the idea that the Supreme Court could enshrine new, highly questionable views of the Constitution in law, and thereby overturn decades, or even more than a century, of precedent. Thus the court in Heller discovered (by a 5-4 vote) a new individual right to bear arms, and, in Citizens United, threw out a century of campaign finance reform (also by a 5-4 vote.) Then, another 5-4 vote declared gay marriage to be legal throughout the nation. That decision, of all the ones I have mentioned, strikes me as the most debatable. That is not because I think it is legally dubious. Once the court had ruled that sex between gay people was legal--as it surely must be--it was simple logic to give gay people the right to marry people with whom they wanted to have sex. But in this case, gay marriage was already legal in many states, and would have rapidly become legal in most of them. Even though holdouts like Mississippi would have remained for some time, the gain of resolving a contentious issue through the political process, for me, would have outweighed the desirability of establishing the right through the Constitution. As it turns out, though, the gay marriage decision seems to me to have had much less long-term political fallout than Roe v. Wade.
The Supreme Court's role in all these highly emotional issues has made court appointments a rallying cry for both parties in Presidential elections. Every four years we are electing a monarch with the power to fill vacancies in a very select and incredibly powerful oligarchy of nine men and women, whose decisions in recent years have been at least as important as the legislation which Congress, from time to time, manages to pass. This may be one reason why Democratic presidents--Clinton and Obama--have found it so easy to ignore, essentially, the Congressional balance of power, which turned against both of them two years into their eight year terms, and to sit quietly by while the Democratic Party is obliterated as a force in many of our states. As long as they could appoint enough Supreme Court justices, they could keep key elements of their base happy.
Donald Trump now has a good chance of creating a solidly "conservative" (in the contemporary sense) Supreme Court. Should he succeed, I predict that Roe v. Wade will either be overturned, or eviscerated to the extent that it becomes a dead letter in the many states with anti-abortion legislatures and governors, who will pass laws to make the right impossible to exercise. I do not think that the court will undo the gay marriage decision, however. The court will continue to favor corporate interests in key cases--but on those issues, Justice Kennedy has been bad enough already.
I don't know how today's Democratic Party will react to this. One possibility will be a drive to increase the size of the court (which can be done legislatively) as soon as they achieve majorities in Congress and regain the White House, to appoint a new liberal majority. That, as FDR found in 1937, would be a terrible precedent and another blow to our democracy. Alternatively the Democratic party might conclude that it has to find ways to reconnect with the great mass of Americans that it has chosen to ignore for quite a while, largely because of those Americans' views on social issues. The party cannot be expected to adopt conservative social views, but it could make a much more determined effort to meet the economic needs of the common man, a task which it has forsaken, for the most part, at least since 1977. I do not know if our democracy can be revived, but the history of the last 65 years tells me that we can't revive it simply by maintaining a liberal majority on the Supreme Court. That doesn't work, either with respect to the social issues Democrats care about the most, or more broadly in the continuing electoral contest with the Republicans.