How Conservatives Captured the Courts

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(AP Photo/Charles Dharapak)

The Supreme Court has not been a major campaign issue in this year's presidential election, which shouldn't come as a big surprise for election junkies. But, the Supreme Court could become a gigantic issue after this January's inauguration-four judges who will be 75 or older by the middle of next year could potentially give the next president a historic opportunity to change the direction of the Court. The relative lack of attention seems particularly hard to explain given that the centerpiece of President Obama's domestic agenda was one vote away from being entirely invalidated by the nation's most powerful lawyers. Whether or not it gets the public attention it should, the federal courts matter. And as Jeffrey Toobin's fine new book The Oath makes clear, at least one of our major parties has understood this very well, and has won many important victories as a result.

The Oath is a sequel of sorts to Toobin's 2008 book The Nine. The first in the series was an intensely readable combination of analysis and insider gossip about the Court in the tradition of Woodward and Armstrong's classic The Brethren. Not surprisingly, given that it takes some time for inside information to leak out of the typically hermetically sealed Court, The Oath is lighter on the gossip and heavier on the analysis. This isn't to say that the former is entirely absent. In the most startling revelation in either book, Toobin informs us that David Souter-the lifelong bachelor who according to The Nine told a luckless date that he had enjoyed her company so much that "they should do this again next year"-had found a "serious girlfriend" before leaving the Court.

While these stories add entertainment value, most of the book is dedicated to advancing an argument very much worth hearing: that conservatives have earned major triumphs in the federal courts in part because they take them more seriously.

Toobin's books are delicious reads in part because he resists the Supreme Court piety infecting so much mainstream analysis. The idea that the Court is "apolitical" is so strong that, for example, National Journal and Newsweek Supreme Court reporter Stuart Taylor can argue with a straight face that hardcore Republican party-liner Samuel Alito would "keep his political preferences out of his legal rulings." (Unless you think that the Constitution just happens to have enacted the 2008 Republican platform, this assertion is farcical.) Toobin is clear-eyed about the Court, understanding that cases get to the Supreme Court because reasonable people can disagree about the legal merits, and hence when cases are politically salient they are likely to come down along predictable ideological lines.

Accordingly, some of the strongest sections of The Oath detail the process by which political disputes become constitutional disputes. Tocqueville's too-often-cited claim that "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question" is inaccurate; many political disputes take place within settled legal norms. But where the Constitution and constitutional norms can provide plausible ammunition in political arguments, political disputes will indeed become legal disputes. Toobin explains how the NRA and other guns-rights groups transformed the understanding of the Second Amendment, leading to the Supreme Court declaring that it conferred an individual (as opposed to collective) right to bear arms in D.C. v. Heller. John Paul Stevens's dissent in Heller was got the better of Antonin Scalia's opinion for the Court in terms of the history of the Second Amendment. But as Toobin notes, this is beside the point: "Scalia's decision had little to do with the original meaning of the Second Amendment. It was an improvisation designed to meet a policy goal, which was, not coincidentally, one of the top priorities of the modern Republican Party." The very nearly successful argument that the Affordable Care Act was unconstitutional, as Toobin observes, is an even clearer example-the idea of mandates had been in the national political discourse for a considerable period of time. Until the Affordable Care Act was passed, no mainstream political figure ever claimed they violated the Constitution.

This fight between political aims and the Constitution has not been fought on symmetrical ground. As The Oath makes clear, Republican presidents have made reshaping the federal courts a high priority since Ronald Reagan's first term. Presidents Clinton and Obama, conversely, have not. This difference in priorities can be seen in the sluggish pace at which Obama gets federal judges confirmed, a result of Republican obstructionism and a slow speed of nominations on the part of the Obama administration. As Toobin notes, another telling example can be found in comparing the second nominations of Obama and George W. Bush. Bush accepted a bloody confirmation battle in order to get the arch-conservative Alito on the seat of the Court. Obama, conversely, passed up an opportunity to use an atypically large Democratic majority in the Senate to get something approaching a liberal equivalent of Alito confirmed, going with the safe choice of Elana Kagan. In a telling detail, Toobin reports that Kagan was chosen over Judge Diane Wood in part because as Solicitor General Kagan fought for a legal position on the repeal of Don't Ask Don't Tell that was to the right of the one ultimately chosen by President Obama. The kind of heterodoxy that would torpedo a nomination in a Republican administration can work to your advantage with a Democratic administration.

What explains this asymmetry? Most importantly, conservative interest groups generally care more about the courts than liberal ones. Another factor is the temperament of recent Democratic presidents. Obama and Clinton both preferred to avoid conflicts over the courts to address other priorities. And in the specific case of Obama, the president's training in constitutional law inclined him towards moderation.

Cass Sunstein, Obama's colleague at the University of Chicago Law School and future administrator of the Office of Information and Regulatory Affairs in his administration, has argued for a more modest role for the courts. And Obama was probably directly or indirectly influenced by another Chicago professor Toobin doesn't mention-Gerald Rosenberg, whose brilliant (if flawed) book The Hollow Hope made a powerful case that the Supreme Court has much less power to initiate progressive social change than is commonly assumed. Given this influence combined his general risk aversion and the priorities of his chief constituencies, it's not surprising that Obama put less weight on the courts than his predecessor.

It must be said that the evaluation of the courts made by the Chicago liberals contains some truth. Contemporary progressives have tended to overrate both the capacity of the courts to create social change and the likelihood that they would protect the interests of the disadvantaged. But in a president, a little more optimism might be beneficial. Partly, this is because there are a few important issues (most notably gay and lesbian rights) where the courts can play a greater role in advancing progressive goals than the skeptics allow.

But more importantly, while the courts acting alone can rarely generate social change, the courts acting unilaterally certainly can inflict substantial damage on progressive victories won in other venues. The near death experience of the Affordable Care Act is the most obvious example, but in a variety of areas (including civil rights and environmental regulation) conservative judges have created conservative victories that Republicans in the other branches would not be able to achieve.

John Roberts's decision to switch sides and provide a fifth vote for (most) of the Affordable Care Act might lead to liberal complacency, but as The Oath shows this would be unwise. NFIB v. Sebelius was, after all, the first major 5-4 decision in which the Chief Justice sided with the Court's more liberal justices, a stroke of luck that is unlikely to be repeated often in the future. Should Obama win a second term, he and his supporters would be well-advised to take the Courts more seriously.