Can Liberals Win in a Conservative Court?

This piece originally ran in The New York Review of Books.

President Trump is on his way out the door, even if he goes kicking and screaming. The Biden-Harris administration will have its hands full picking up the pieces. Trump has left the federal government a kind of environmental disaster area, desperately in need of a massive cleanup. No president in US history has done more to degrade the presidency, constitutional norms, or American politics. The good news is that Trump did most of his damage unilaterally, through executive action, and therefore Biden can unilaterally reverse those actions.

On one matter, however, changing course will be far more challenging. With the support of Senate Majority Leader Mitch McConnell and the Federalist Society, Trump has appointed more than three hundred new federal judges. He has named fully 30 percent of federal court of appeals judges, and three Supreme Court justices: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They all serve for life. And unless Democrats win both runoff Senate races in Georgia, Biden will require the assent of a Republican-controlled Senate to appoint any new judges or justices. What does this landscape mean for the future of the federal courts, and the Supreme Court in particular?

To find a Supreme Court as conservative as today’s, you have to go back to the Progressive Era and the early days of the New Deal, when practically the only constitutional rights the Supreme Court recognized were the rights of big business owners to be free of regulation designed to protect consumers and workers. Today’s court has six Republican appointees and only three Democratic ones, and the Republican appointees all came with burnished conservative credentials. Trump’s last-minute appointment of Justice Barrett saw a civil rights hero, Ruth Bader Ginsburg, replaced by a deeply Catholic abortion opponent and acolyte of the late Justice Antonin Scalia. Justice Kavanaugh has thus far shown himself to be more conservative than Anthony Kennedy, whose seat he has assumed. And Justice Gorsuch, while less predictable, has many very conservative views, including a fundamental distrust of the administrative state.

So, what is a civil libertarian to do? When preelection opinion polls appeared to promise that Democrats could win not only the presidency but also the Senate, some talked of “court reform.” The reformers argued that the Republicans had effectively “packed” the Supreme Court through a series of technically legal but unprecedented maneuvers, from the refusal to give Merrick Garland a hearing almost a year out from one general election to the ramming through of Justice Barrett’s confirmation just days before another. But absent Democratic control of the Senate, court reform is illusory.

And even if reform had been possible, it risks further politicizing the court, and that, in turn, would carry its own substantial costs. Constitutional rights and civil liberties, by definition, protect those who cannot protect themselves through the political process: members of minority groups, dissidents, the vulnerable and powerless. Their protection requires an institution that does not answer directly to the democratic polity. Indeed, that’s the best argument for life tenure, as a guarantee of independence. If the court becomes just another political arena, constitutional rights will cease to function as a check on majority power.

We are stuck, therefore, with the hand that has been dealt us. What then? When one considers how many important cases have been decided in the last couple decades by 5–4 votes, with Justice Ginsburg in the majority, it is easy to despair. The right to marriage equality, and recent decisions upholding the right to abortion, were decided by a single vote. Privacy rights to cell phone location data, Guantánamo detainees’ access to court, and juveniles’ right not to be executed similarly were all decided by a single vote. So, too, was the court’s recent protection of Deferred Action for Childhood Arrivals (DACA) recipients, and its invalidation of Trump’s attempt to skew the 2020 census by asking about citizenship. The Affordable Care Act survived its first and most significant challenge by a single vote as well. (As ACLU National Legal Director, I was counsel in the census and cellphone privacy cases, and filed an amicus brief in the DACA case.) If the liberal side in these cases had had to attract not just one conservative vote, but two, we might have lost them all.

But there is reason not to give up hope. A conservative-dominated Supreme Court is actually nothing new. The bench has been comprised of a majority of conservative and Republican appointees ever since 1971. Yet, in that time span, the court has ruled that discrimination on the basis of sex violates equal protection, recognized the right to abortion, and rebuffed a concerted effort by the Reagan administration to overturn that right. It invalidated laws making same-sex sexual relations a crime and recognized marriage equality. It expanded the jury trial rights of criminal defendants and the First Amendment rights of anonymous pamphleteers, flag-burners, proponents of unpopular and even hateful views, and Internet users. It limited the application of the death penalty, upheld affirmative action, and ruled that ostensibly neutral housing practices that have a disparate effect on racial minorities violate federal law. And most recently, the court ruled that laws that prohibit discrimination “because of sex” also prohibit discrimination on the basis of transgender status or sexual orientation (I was counsel in this last case as well).

Last term alone, the court reached “liberal” results in virtually all of its most controversial cases — including abortion, LGBT rights, DACA, and Trump’s claim that he could not be required to turn over private financial records to a grand jury or congressional committees. Whatever else one might say, the court has not been the unremittingly conservative body that some predicted and many feared.

Why would a conservative court have reached all of these liberal decisions? One reason is that constitutional cases are decided by the application of precedent, so justices are not free to vote their party line, as are members of Congress. The law is not, of course, divorced from politics, but it is different from politics in this sense. Precedents do not dictate results, but they provide more direction and constraint than cynics are generally inclined to acknowledge. One reason the conservative court has reached liberal results is because that was actually the best reading of the law.

Second, the court’s legitimacy rests on its remaining open to argument. If the court decided every controversial issue on partisan ideological lines, it would lose its ability to resolve disputes in a way that people by and large accept. Consider, for example, Trump’s current attack on the results of the presidential election. The federal courts are hearing — and rejecting — those claims, and are virtually certain to reject Trump’s effort to reverse the election’s outcome. Once that happens, at least some people will be more likely to accept the results of the election than if we did not have an institution removed from politics to decide the dispute. But the courts’ ability to play that part requires that they are perceived as open to both sides, and guided by law, not pure politics.

Third, the court’s standing with the public also depends on its not diverging too far from where the country is on matters of constitutional principle. Political scientists who have studied the court over time have found that, while it may not literally “follow the election returns,” its decisions generally reflect contemporary public values. A conservative-majority court reached all the liberal outcomes listed above in part because public opinion, over time, increasingly recognized the equality claims of women and LGBT persons, questioned the death penalty, supported affirmative action, and the like.

A caveat is important here. The forces outlined above tend to operate in those cases in which the court knows that it is being watched. But every year, the Supreme Court decides many significant cases that draw relatively little attention — and in those cases, the conservative justices tend to vote much more consistently along conservative lines. Thus, in important cases pitting employees’ or consumers’ rights against businesses, the court has rarely ruled against business. Because the results in these cases are often below the radar, the conservatives may feel less incentive to restrain their ideological biases.

Republicans have long lamented the tendency of their appointees to move to the center once appointed to the court. This was arguably true of Justices Harry Blackmun, David Souter, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, and appears to be true of John Roberts. But if I am right that the court’s reputation turns on its being perceived as fair — as deciding cases based on principle rather than political ideology, as open to argument, and as in tune with the nation’s evolving fundamental values — there will be incentives on any conservative-majority court for one or more justices on the right side of the court to move left, at least in some significant cases. On a liberal-majority court, by the same token, the incentive would be for one or more of the liberals to move right. (Because the Supreme Court has so rarely been dominated by liberals, we don’t have as much evidence for that transformation, but there are certainly examples of Democratic appointees who voted more conservatively than expected once appointed, including Felix Frankfurter and Byron White.)

All of this suggests that it is too early for civil libertarians to give up on the Supreme Court. But it also underscores that the battle for civil liberties must be waged not only, or even mostly, before the court. The Supreme Court did not deliver us equal protection for women or marriage equality. The feminist and LGBT movements did that, through painstaking political and legal work in a variety of forums, including corporate boardrooms, university faculties, city councils, state courts and legislatures, governors’ and mayors’ offices, dinner-table conversations, Congress, and the executive branch. The court then recognized the advances that had been won outside its four walls.

There are some areas of legal dispute in which one simply has no choice but to sue in federal court, so one cannot give up on the judiciary even when it is dominated by conservatives. When a red state passes a law banning abortion, the very politics that made the state law possible are likely to infect the state’s courts — in particular, as most state court judges have to run for election. When the Department of Homeland Security targets immigrants for enforcement actions that deny due process, the only recourse is federal, and neither the president nor Congress have shown much sympathy for immigrants. Criminal defendants often lose through every phase of the state criminal process, only to prevail when, after completing the state appeals process, they are allowed to seek relief from a federal court through a claim of habeas corpus. One of the surest ways for a state judge to lose his seat is to vindicate a criminal defendant’s constitutional rights; federal courts, with their judges’ life tenure, have proved more receptive.

So the work of civil libertarians will continue apace, inside and outside the federal courts. We may increasingly turn to more sympathetic forums to make initial inroads, as advocates for marriage equality so effectively did. But in the end, if the country supports civil liberties and civil rights, the Supreme Court is unlikely to get in the way. This means all of us can and must do our part to defend liberty. As one of the United States’ greatest judges, Learned Hand, said:

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.