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.