The Supreme Court, the Election, and the Recession: How Does the Court Fit In, and How Might Changing Circumstances Change the Court and Its Role?

By EDWARD LAZARUS


Friday, Oct. 10, 2008

For Supreme Court junkies like me, it already looked like a rather slow season. The Supreme Court opened its new Term this week and all most of us could do is yawn. As commentators have politely noted, the docket isn't exactly filled with blockbusters.

To be sure, the Court is going to tackle some sexy issues. Everyone loves First Amendment cases, and this Term the Justices will tackle how much protection the First Amendment gives to networks that fail to block the broadcast of fleeting obscenities uttered by persons on their programs.

There are also some cases following up on important recent trends in the Court's jurisprudence, such as its recent propensity for protecting businesses that are subject to federal regulation from competing state regulatory regimes. This term, for example, the Justices will decide the extent to which the Food and Drug Administration's regulation of the tobacco industry preempts states from enforcing their own state consumer protection laws prohibiting misleading advertising.

It is also true that the Court's docket is far from full. So it's premature to say definitively that this Term won't be all that interesting or decisive.

But even if the Court's calendar had been chock full of big cases, I get the feeling that the Supreme Court's business might seem far less urgent and relevant than usual right now - at this particular, and likely historic moment.

How the Election and the Recent Economic Upheaval May Affect the Court and Its Role

Part of this is the upcoming presidential election. It takes the focus off the Court's current docket and places that focus firmly on the Court's future and the question of how the election will affect the political balance of the Court. Currently, the Court is split; There are four relatively liberal justices and four quite conservative justices, with Justice Anthony Kennedy - a moderate conservative with a bit of a libertarian streak - occupying the swing seat.

But the diminishment of the Court's current term would probably be happening even if this were not a presidential election year. The implosion on Wall Street and the nationalization of so much of our financial system isn't merely the end of the financial world as we have known it for the last several decades. It isn't merely the harbinger of an economic crisis of serious and scarily unknown proportion. No, it is also an upheaval in the world of entrenched institutions and ideas of such once-in-a-generation-or-more magnitude that it threatens to make our customary ways of looking at things quaint and obsolete, and opens the door to potential realignments that we can't yet fathom or anticipate.

How does the Supreme Court fit into this picture? The conventional wisdom is that an Obama victory in November, now the more likely outcome, will lead merely to a continuation of the status quo at the Court. Not long ago, I wrote this myself. The logic is straightforward: The most likely retirees from the Court - Justices John Paul Stevens, Ruth Bader Ginsburg, and David Souter - are all on the liberal wing of the Court, which means that, at best, a President Obama would just be replacing one set of moderate-to-liberal Justices with another.

But the events of the last few weeks might, over the longer run, prove to be a "game-changer," to use the hackneyed argot of politics. Perhaps the brutal realities of a deep and prolonged recession, if that comes, will finally break down the seemingly unchanging and indelible fault lines that have split the Court for a generation. Perhaps when crisis meets ideology, ideology will bend more than a bit, as it has already in the White House and Congress from necessity.

The Modern Court Has Faced Little Sustained Criticism But In a Time of Economic Crisis, That Could Change

Looking back over the last twenty years at the Court, I have often asked myself how it can be that there has been very little sustained criticism of the institution, despite a host of controversial and not always well-reasoned decisions of huge consequence, including the ultimate abomination of Bush v. Gore.

Part of the answer, I am convinced, lies in the fact that, over that period, Justices Sandra Day O'Connor and Anthony Kennedy have, in their own ways, gradually guided the politics of the Court into rough alignment with the politics of the country. America has been, taken as a whole, a nation of moderate conservatives. Most of us believe women should have some freedom over their bodies, but also favor abortion regulation to make the procedure rare and to involve families when juveniles become pregnant. Most of us understand the need for small preferences for women and minorities, especially in the educational setting, but the whole idea runs counter to our aspirations for pure equality. Most of us don't want to exile religion from the public square, but we don't want too much religion too involved with government either. And most of us are basically tough on crime, but we worry about police abuses and the risk that innocent people might be put to death.

The political genius of the modern Court is the way the swing-voting Justices rolled back the more progressive decisions of the Warren era in a major but fundamentally un-radical way, and landed the Court squarely in the mainstream in a nation with relatively conservative political instincts. Whether this rollback should be admired or not is another question; its existence and effect, however, are quite clear.

The events of the last few weeks, however, make me wonder whether the political balance of the country may not change substantially - and quite quickly -- in response to severe economic pressures. I don't pretend to know what such a change would look like. But it is not hard to imagine a fundamental shift in attitudes towards government regulation, the power of the federal government, the nature of markets (deeming them perhaps less benign than had been believed), the virtues of large business conglomerates, the untouchability of entitlements, the need for greater transparency and accountability for both business and government, and the sacrifices that need to be made to advance economic, environmental, and national security interests.

With Economic Issues At the Fore, the Court May Begin to Seem Irrelevant Unless It Responds to What Is Occurring

Ultimately, this economic crisis has laid bare the enormity of the challenges ahead and rendered somewhat quaint the old topics in constitutional law that we've been fighting over for so long.

Last week, Katie Couric interviewed both Joe Biden and Sarah Palin about their views on Roe v. Wade and a woman's right to choose. To be honest, neither one of them gave a very compelling answer. Biden described the logic behind Roe's trimester system, as if that regime had not been substantially revamped in Planned Parenthood v. Casey. And then he started talking about the right to privacy as if the year were 1986, and Reagan had just nominated Robert Bork. Palin, for her part, seemed to be struggling to articulate the standard "It's a matter for the states" conservative line - but mostly was completely at sea.

What really struck me about the interview, however, was less how pat and predictable the responses sounded, and more how removed it all felt from the immediate concerns of almost everyone listening. This is not to say, of course, that the right to choose isn't important or that this right won't be affected by who wins the election. It is important. And it might be affected if McCain wins. But at the moment, the issue feels old and settled, in large part because the Court has steered the law into a place that most people find comfortable. And also because so many other things are making all of us uncomfortable now.

Years ago, Yale Law Professor Bruce Ackerman coined the term "constitutional moments" to describe those rare moments in history - the Civil War, the Great Depression, the Civil Rights Movement - when enormous changes in society and government radically revised our thinking about the Constitution and our laws. It is too soon to know if we are in the midst of one of those moments now. But for the first time in decades, the possibility exists.


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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