The Supreme Court and Public Opinion: Will They Soon Diverge, If a Democrat Is Elected This Year?

By EDWARD LAZARUS

Friday, Jan. 18, 2008

Throughout our history, the Supreme Court has moved in and out of sync with public opinion and the dominant political sentiment in the country.

In the early 1930s, for example, the Court - led by the famous "Four Horsemen of the Apocalypse" - stood in stark opposition to President Franklin Roosevelt's economic reform program and the progressive political current that he rode to multiple re-elections. Although changes in personnel at the Court eventually brought it back into harmony with contemporary politics, a serious clash between the Court and the presidency was only narrowly averted, by the "switch in time that saved nine" through which one Justice decided FDR's programs were constitutional after all.

On the opposite side of the coin, in the late 1960s, at the end of the Warren era, the Court's liberal decisions expanding the rights of criminal defendants set the Court at odds with the law- and-order mood that carried Richard Nixon to the White House.

Over the last 20 years or so, there has been an overall congruence between the general ideological thrust of the Court's decisions, and the dominant political current in the nation at large. But as the 2008 presidential campaign heats up, it seems at least possible that this quiet equilibrium will come to a crashing end and the Court will find itself very much at odds with public opinion and the dominant views in the elected branches of government. Thus, it may be well worth looking at other Court shifts to see what may be in store for us all.

The Shift by Which the Warren Court Became the Rehnquist Court

As the Court is an institution made up of life-tenured members with little turnover and a tradition of respecting past decisions, political cycles at the Court tend to evolve slowly. Generally, it takes a significant and sustained political shift in the body politic before a commensurate change will occur at the Court.

The gradual dismantling of the legacy of the liberal Warren era is a case in point. Chief Justice Earl Warren retired in 1969. But over the next 17 years, his conservative predecessor Chief Justice Warren Burger had relatively little success in reversing the Court's generally liberal bent. To the contrary, the Burger Court sometimes extended the Warren Court's liberal decision-making, as occurred most notably in 1973 when it handed down Roe v. Wade.

However, by the time William Rehnquist took over as Chief Justice in 1986, the Court was finally poised to re-align itself with a country that had moved fairly steadily to the right over the previous 15 years. By this time, Republican Presidents (Richard Nixon, Gerald Ford, and Ronald Reagan) had replaced six members of the old Warren Court (all but William Brennan, Thurgood Marshall, and the more conservative Byron White). On many issues, this tipped the Court into a narrow conservative majority consisting of Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and, on most issues, Justice White - slightly outnumbering the more liberal wing consisting of Justices Brennan, Marshall, Harry Blackmun, and John Paul Stevens.

This basic alignment held for the next two decades. David Souter replaced Brennan. Clarence Thomas replaced Marshall. Ruth Bader Ginsburg replaced Byron White. And Stephen Breyer replaced Blackmun. But overall, the political balance of the Court remained relatively unchanged - with a five-vote majority controlled by O'Connor and Kennedy steering the Court towards the same moderate conservatism that prevailed in a body politic that elected a relatively moderate Republican (George H.W. Bush), a moderate Democrat (Bill Clinton), and a supposedly compassionate conservative (George W. Bush).

A look at some of the Rehnquist Court's doctrinal shifts during this period makes the point. With respect to abortion rights, the Court re-affirmed the basic right to a first-trimester abortion (without public funding), but also allowed for politically-popular regulations, like waiting periods and parental consent for minors.

Regarding affirmative action, the Court struck a balance very much in keeping with public sentiment. The justices adopted an increasingly skeptical view of race-based preferences in hiring and education, but stopped short of outlawing such preferences altogether.

Similarly, with respect to criminal law issues, the Court cut back significantly on the rights of criminal defendants - a move fully consonant with public concern about coddling criminals - but declined to overrule important symbolic precedents, like Miranda, which had been fully absorbed into our social culture.

In the field of religion, the Court struck yet another balance reflecting mainstream political thinking. Reflecting the nation's overall shift away from secularism, the Court significantly lowered the metaphorical wall separating Church and State, though it kept in place some bedrock precedents, like those banning prayer in public schools.

Will the Roberts Court's Increasingly Conservative Ideology Clash with that of a Potential Democratic President?

Since John Roberts replaced Rehnquist as Chief Justice, and Samuel Alito replaced O'Connor, the Court's rightward movement has accelerated somewhat. In decisions symbolic of a Court moving sharply to the right in at least some areas, last Term a narrow five-member majority upheld the federal ban on late-term abortions, struck down two public school pupil assignment plans designed to achieve racial balance in classrooms, and sharply limited the time given victims of employment discrimination to bring their claims.

In keeping with the general rule that political change at the Court comes slowly indeed, the current rightward tilt of the Court is likely to last for the foreseeable future. Even if a Democrat wins election in 2008, it is unlikely that he or she will get to replace any of the conservative justices, thus tipping the Court in a more liberal direction. The two justices most likely to retire in the next four years are Stevens and Ginsburg, both members of the Court's more liberal wing. Thus, if a liberal appoints their successor, it will only preserve the status quo.

At the same time, however, the country's politics may well be on the verge of a sea-change. On the Democratic side, both Barack Obama and John Edwards are running on platforms centrally focused on the idea of bringing dramatic reform to our political system and to greater accountability for both government and business. Although perhaps less committed to these issues, Hillary Clinton, too, is likely to adopt these themes if she becomes the Democratic nominee.

All told, it would not be surprising if 2008 saw the election of a Democratic president ushered in on a somewhat populist reform platform, who will also enter office with substantial Democratic majorities in both houses of Congress. And if this happens, then the resulting reform coalition will run smack into an increasingly conservative Supreme Court whose decisions already betray deep hostility to the very kinds of reform such a reform coalition would favor.

The current Supreme Court, for example, is extremely hostile to campaign finance reform and has made it much tougher to hold businesses accountable for their wrongdoing in court. Yet campaign finance reform and greater regulation of business (including through lawsuits) are high on the reform agenda.

It is too soon, of course, to make any predictions about a titanic clash between the Court and the elected branches. But a few years ago, such a clash seemed unimaginable. It is not so now.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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