Featured Post

New book available! David Kaiser, A Life in History

Mount Greylock Books LLC has published my autobiography as an historian,  A Life in History.   Long-time readers who want to find out how th...

Saturday, June 20, 2020

A Turning Point in the Supreme Court?

Last week, as its term draws to a close, The Supreme Court handed down two surprising and critical decisions.  By a 6-3 decision, it brought LGBT Americans within  the protection of the Civil Rights Act with respect to job discrimination, on the grounds that firing a man because he is in a long term relationship with another man (for example) constitutes sex discrimination, since the company would not have fired him had he been a woman.  Then, in a closer 5-4 decision, the Court threw out the Trump Administration's attempt to repeal DACA, the Obama Administration's program that protected US inhabitants who had come to the country illegally at a very early age. Chief Justice Roberts joined the liberal quartet of Justices Ginsburg, Breyer, Kagan and Sotomayor in both cases, and Justice Gorsuch wrote the opinion in the employment discrimination case.  In my opinion, these decisions will turn out to be a turning point, of sorts, in our great political crisis.  As such, they remind me of three forgotten decisions handed down on March 29, 1937, which signaled the end of a very different court's resistance to the New Deal.

During Franklin Roosevelt's first term, an aged Supreme Court, filled with justices who had been shaped by their youth during the Gilded Age, had emerged as the major obstacle to New Deal legislation.  Ranging in age from 77 to 58 when FDR took office in 1933, many of them believed firmly in corporate personhood, which gave corporations the rights of individuals under the 14th amendment, and absolute liberty of contract, which ruled out state or federal regulations of wages or hours.  During Roosevelt's first term they struck down the National Recovery Act, the Agricultural Adjustment Act, another law designed to give farmers mortgage r
rm.  He still had not had a single opportunity to appoint a justice himself.

In November 1936, Roosevelt won re-election and even larger majorities in Congress by one of the greatest margins in American history.  Significant in many ways, that election also gave the Democratic Party--which had now thanks to FDR became the preferred party of black Americans--Congressional majorities that did not depend upon white southerners, and segregationists joined economic conservatives in their alarm over what Roosevelt might now do.  In the wake of his re-election he decided, without consulting the Congress, to propose a new law that would allow him to appoint a new supreme court justice every time a justice failed to retire at the age of 70--which six members of the current court had declined to do,  A storm of controversy erupted, kicking off a six-month legislative battle.  Before it had gotten very far, however, the Supreme Court--led by Chief Justice Charles Evans Hughes, a progressive Republican--took the hint.

On March 29, 1937, the Supreme Court unanimously upheld three pieces of legislation.  The first upheld a state minimum wage act, undoing 20 years of precedent.  The second let stand a new law to provide mortgage relief for the nation's distressed farmers, and the third upheld a new law regulating the rights of labor in the critical railroad industry, and foreshadowing a later New Deal victory i the Wagner Act case.  Just two months later, one aged justice retired, and FDR replaced him with Alabama New Dealer Hugo Black, who became one of the greatest and most liberal justices ever to sit on the court.  FDR's court packing plan failed disastrously and his hold over Congress on domestic issues was broken forever, but the court never overruled a significant piece of New Deal legislation again.

Over the last five decades the Supreme Court has become perhaps our most critical political battleground.  Both liberals and conservatives have successively depended on it to establish some of their most cherished policy goals, including school integration, affirmative action, the reapportionment of state legislatures, abortion rights, and gay rights (for Democrats), and expanded Second Amendment rights, an end to restrictions of campaign spending, and a rollback of civil rights protections and abortion rights (for Republicans.)  This development in my opinion has been a disaster for American democracy, since it has put critical decisions in the hands of nine unelected persons rather than in the political branches of our governments.  With the appointments of Neil Gorsuch and Brett Kavanaugh to join Roberts, Samuel Alito, and Clarence Thomas, it seemed possible that the Republicans were in a position to push through their whole agenda on all these fronts.

The 6-3 decision on gay rights, written by Gorsuch and joined in by Roberts, shows that that will not happen.  At some level the court majority has obviously realized that gay rights are here to stay and that that is a good thing, too.  I had expected before this that the court would take a forthcoming opportunity to overturn Roe v. Wade and return the abortion issue to the states, but now I am not so sure.  In 1937, a narrow court majority had been marching in lockstep, allied to the minority of Americans who totally rejected government intervention to regulate the economy--and they decided to give way before the clear electoral verdict of the American people the previous fall.  In 2020, for some time, Republican-appointed judges had marched in lockstep to implement a conservative Republican social agenda that majorities of Americans do not support.  This week they refused to continue doing so.  They also imposed in the DACA case a limit on the Trump Administration's capricious uses of executive power.

The gay rights decision tends to confirm what I have predicted here at least since late 2015--that the liberal side will win on social issues in this crisis, while the conservative side consolidates its victories on economic ones.  Where that leaves the country in the long run I do not know, especially as the government's failure effectively to handle multiple crises becomes more and more apparent every day.  But victory on social issues--the ones which the Democratic Party has cared about by far the most--remains important, and it is gratifying that Supreme Court justices, whose power is now at an all-time high, still refuse to have all their opinions dictated by militants within the party of the president who appointed them.





6 comments:

Bozon said...

Professor
Great article.

I think you see what I have seen, and you more or less say so, a judiciary now long more determined to maintain and expand its own power at the expense of other branches' powers and domains, or the several states' natural or most logical domains, than it is to make a correct or properly reasoned decision in any particular matter before it.

The decision, and so called reasoning, on workplace discrimination, against gays, as based on the sex of the person discriminated against, as you describe here, does seem senseless:

"By a 6-3 decision, it brought LGBT Americans within the protection of the Civil Rights Act with respect to job discrimination, on the grounds that firing a man because he is in a long term relationship with another man (for example) constitutes sex discrimination, since the company would not have fired him had he been a woman."

One question might be, is the reasoning the same for a gay woman, in that they would not have fired the fired woman had she been a man?

The law was designed to protect biological women, and it seems logical enough to etend it to transgender men. It does not seem proper reasoning to extend it to being gay per se. In our hobbled system, that should be something either Congress or state legislatures, or both, should consider, not the federal judiciary.

But when you reflect on some of the larger stretches of reasoning of the Court, by analogy, in the past, even to the willingness, for example, of the Judiciary to grant full legal personhood to a corporation in the first place under the constitution, to which you also tellingly refer, this is all somewhat less about correct reasoningin any particular case at all than about judicial power in general.

All the best

Bozon said...

Professor
Here is just a short postscript.
It will not be to everyone's tastes, but one cannot please all, and it stirs the pot nicely:

The separation of church and state, which emerged out of doctrines of toleration from conflicts in the Reformation, had left a vacuum which the judiciary here has filled to the detriment of other branches.

At this point America would be little worse off having its morality dictated by Rome, bad as it has been, than by the Supreme Court which also governs mostly for itself.

All the best

Energyflow said...

So this is a smart tactic. I recall in the generations book the discussions of GI generation on radically altered reality in the 60s and 70s with the boomers having transformed the social landscape. My own father grappled visibly with black, gay and abortion rights. Clearly these are matters of the heart. I recall how Dick Cheney refused in discussions with W any gay criticism, regardless of core belefs, due to his lesbian daughter. What can one do? How far all this can go while ignoring the crass growth in income disparities due to the Fed policies and the death of manufacturing is a good question. The left, having won on all the social issues, will turn once again to the economic field. High taxation and regulation could follow. Glass Steagall repeal was a catastrophe. Whatever these riots bring in demands will hopefully be quickly appeased so that more substantive issues of mass unemployment due to the crisis can be resolved. If so many parts of the economy are nonessential, just part of a service economy, consumerist paradise which we can do without all based upon ballooning, unpayable credit then retraction is called for. But what will people do for a living? Maybe without cash they will make their own things by hand and barter, cut hair and do repairs, mend for each other and do small manufactures, gardening. Economic freedoms will then come to courts, like raising chickens in suburbia. Lots of food factories are closing due to Covid namely. So emphasis will certainly shift, as social issues are resolved in the main. Transgender rights and polyamory rights are not yet mainstream but maybe in 20 years, who knows. How many parents can a child have at once and should the neighbours, churches really get uptight about this. Meanwhile economics is the next really big deal. They are printing the dollar into oblivion. Exorbitant US privilege, along with foreign adventurism could disappear rapidly regardless of enthusiasm for human rights and ambition. This is all also due to economics. The culture reinvents itself due to a crisis. This is now apparently the big crisis endgame like the early 40s, imho. Let's see how it works out.

Wes Volkenant said...

I have to take exception with the comment(s) left by my fellow commenter, "Bozon."

IF, I have understood Justice Gorsuch's opinion, he was looking simply at the word "sex" and determined that while no one in 1964 was looking at protections extended to LGBTQ persons, the law itself involved gender issues, and in 2020, gender is no longer, publicly, a matter of biological men and biological women.

Understanding that the question now is anyone - no matter how they identify themselves gender-wise, there's a basic question for any employer - what business is it of yours, as my employer, who I sleep with or have sexual relations with?

And the answer seems to be, it isn't the employer's business, so discrimination on the basis of being anything other than a straight man or straight woman, is no longer tolerated, and those persons have their rights protected by law - as interpreted by a Court majority that had to determine if the intent of that law could be applied in a 2020 world to today's workforce.

All my best to David Kaiser and to commenter Bozon.

Bozon said...

Professor
While I stand by my analysis above, Mr Volkenant makes some important points, which I believe would be the kinds of issues better left to legislation, to extend laws of this kind, if Congress were so to decide, to gay men, and not to the Supreme court. That was, incidentally, part of my point about judicial encroachment on other branches. If Americans wanted such protections extended to gay men, or to gay women, or to transgenders, or whatever, that is a decision, in my judgment, best left to Congress, rather than to the Supreme Court.
All the best

Bozon said...

Professor

I find the decision, ruling that half of the state of Oklahoma is Native American land, to be a truly breathtaking decision, much further along the lines of what we have discussed here recently regarding encroachment.

Maybe it is rightly decided. If so, it is probably based on a series of prior decisions leading up to it that has not been contradicted or overridden apparently by Congress heretofore.

If you have looked at what it is like being determined or not determined to be part Indian of one tribe or another, you will get a hint of what an incredible boondoggle the whole concept of being an Indian heritage person in this country is about.

Existing criteria based only on being named on old lists are ridiculous.

They would be much better off with DNA testing at this point, which is quite feasible: I had thought I was one eighth Indian, but turned out not a bit.

I see no end in sight myself.

All the best,