It’s not just Roe v. Wade that is threatened by a Supreme Court with two Trump-appointed justices. Two Supreme Court cases in the news this week, and the willingness of the activist majority to abandon conservative judicial principles and impose their vision of the Republican platform on the country, presage devastating rulings ahead for environmental protection, health and safety rules, consumer rights, union-organizing, restraining monopolies, and all manner of regulation that seeks to benefit working- and middle-class folks as opposed to big business. The U.S. hasn’t seen such a conservative and aggressively activist SCOTUS majority since before the New Deal.

CASE #1

“District of Columbia v. Heller, which recognized an individual right to possess a firearm under the Constitution, is unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench.” John Paul Stevens, May 14, 2019

In District of Columbia v. Heller, Antonin Scalia’s 5-4 majority opinion struck down a law banning possession of handguns and requiring other firearms to be stored unloaded or locked. The Court’s decision rejected the clear language of the Constitution (which recognized the right to bear arms to sustain well-regulated state militias); Colonial history, when firearm regulations were in place before adoption of the Constitution; a history of uncontroversial federal restrictions on firearms (including a 1927 ban on mail delivery of handguns and a 1934 law outlawing possession of sawed off shotguns and machine guns); and the unanimous 1975 Supreme Court ruling, United States v. Miller, which deferred to the plain language of the Second Amendment, “In the absence of any evidence that the possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

“One of the greatest pieces of fraud”

Stevens writes:

So well settled was the issue that, speaking on the PBS NewsHour in 1991, the retired Chief Justice Warren Burger described the National Rifle Association’s lobbying in support of an expansive interpretation of the Second Amendment in these terms: “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”

It is critical to see what was going on here: The court majority in the Heller case was intent on embracing not a strict reading of the text, or original intent, or legislative history, or a common sense remedy to an acknowledged social problem; instead, the 5-4 majority adopted a historically anomalous interpretation of the Second Amendment, created and espoused in recent decades by the conservative legal movement and powerful allies of the Republican Party, chiefly the National Rifle Association.

Long story short: NRA hardliners in the ’nineties elevated Wayne LaPierre to run the outfit, embraced survivalists and other fringe groups, and transformed the organization from a sportsman’s group to an advocate for militias that opposed “jack-booted government thugs” (ATF agents) and stockpiled arms in anticipation of a fight against federal tyranny. This mutation proved to be highly profitable for the nonprofit organization (and for LaPierre).

Stare Decisis

For former-Justice Stevens, stare decisis (a Latin phrase meaning ‘to stand by things decided’), which is the legal principle that the judiciary will respect precedent, was sufficient to justify upholding the District’s gun regulations. As SCOTUS decisions in previous decades have affirmed [Payne v. Tennessee], stare decisis is “a foundation stone of the rule of law,” which “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Stare decisis alsoreduces incentives for challenging settled  law, saving parties and courts the expense of endless relitigation.

Stevens concludes his essay with mention of mass shootings – at schools, music venues, churches – that now occur with tragic regularity. The 5-4 Heller majority – in rejecting the conservative legal principle, stare decisis, and imposing a viewpoint embraced by Republican Party special interests, chiefly the NRA – made these shootings inevitable by prohibiting sensible regulation of firearms.

CASE #2

Last Monday, another 5-4 Republican majority rejected stare decisis in Franchise Tax Board of California v. Hyatt, a decision (related to a dispute between California and a former Californian, who now resides in Nevada) that hinged on the issue of state sovereignty. Stephen Breyer’s dissent (on behalf of the four Democratic justices) sounded a warning, which has been widely interpreted as anticipating the majority’s willingness to reverse Roe v. Wade. Leah Litman, writing in the New York Times, sounded a common refrain:

… Hyatt has everything to do with the Supreme Court’s respect for precedent. And respect for precedent is one of the few things, if not the only thing, that stands between the conservative Roberts court and overruling Roe v. Wade. Hyatt made clear that the five conservative justices are perfectly content to overrule a precedent merely because they disagree with it. That should raise alarm bells about Roe, particularly as states enact draconian restrictions on abortion.

I agree with Litman and Breyer: the Roe decision is highly insecure with the five Republican justices that form the court’s majority. Reversing Roe would have cataclysmic effects on women’s reproductive rights in much of the country. For evangelicals and others who would like to put women back in their places (circa the 1950s, the ‘Again’ in Trump’s MAGA), erasing Roe would be a giant step in that direction.

But – without diminishing the repercussions for women – reversing Roe is only the tip of the iceberg.

Because Roe was so fundamentally consequential and, as a major driver of Republican votes, continues to be so consequential, it is often a focus of discussions about the Supreme Court. But with the focus on Roe, there may be a significant failure to appreciate how broad and comprehensive the conservative legal movement’s attack on settled law has become.

California cautionary tale circa 1986

In an illustrative case in 1986, California voters recalled Chief Justice Rose Bird and two associate justices of the State Supreme Court. Voter anger over the death penalty – Bird and company had overturned more than 60 death penalty verdicts, while upholding none – powered the successful campaign. But the campaign was lavishly funded by agribusiness, the banking industry, and other special interests who sought to squelch the most pro-worker, pro-consumer high court in the country. It worked. The court, after the recall, became much more attuned to the interests of business and corporations.

The controversy over abortion has – for decades – been the high profile campaign issue that the death penalty was in California thirty years ago. But now, as then, that’s hardly all that is at stake. The bulk of the GOP donor class is more intent on quashing regulation, lowering tax rates, suppressing worker rights, and keeping consumers at bay, than reversing Roe. They are seeking a compliant federal bench. Right to life vs. right to choose is a more salient issue for most voters, than (for instance) rulemaking and enforcement at the Consumer Financial Protection Bureau, so Roe has been the focus of debate about the courts.

Movement conservatives shun conservative legal principles

In the Hyatt case, like Heller, the 5-4 court majority did not rely on conservative legal principles, or a close reading of the Constitution, to arrive at its decision.

Breyer’s dissent criticizes the majority’s assertion that the Constitution changed, in a basic way, the nature of state immunity. “The most obvious problem with this argument is that no provision of the Constitution gives States absolute immunity in each other’s courts.”  He continues, observing the vague conservative appeals to what is “implicit” in the Constitution, “embedded … within the constitutional design,” and reflected in “the plan of the Convention.” But – Breyer notes – concepts like these are “highly abstract and difficult to apply,” “invite differing interpretations,” and “suffer the additional disadvantage that they do not actually appear anywhere in the Constitution.”

At any rate, I can find nothing in the “plan of the Convention” or elsewhere to suggest that the Constitution converted what had been the customary practice of extending immunity by consent into an absolute federal requirement that no State could withdraw. None of the majority’s arguments indicates that the Constitution accomplished any such transformation.

In other words, there is no convincing path from textualism or originalism – the conservatives’ purported means of interpreting the Constitution – to the conclusions the majority reaches.

Breyer, like Stevens, then presses his argument about stare decisis (a conservative legal principle virtually by definition): unless there is a compelling reason to overturn a decision, then jurists should refrain from doing so. “While reasonable jurists might disagree about whether Hall was correct, that very fact—that Hall is not obviously wrong—shows that today’s majority is obviously wrong to overrule it.”

And Justice Breyer makes clear that his concern is much broader than this single case. It is one thing to reverse a case because it proved to be impractical, legally obsolete, or when changing facts have made it impossible to apply or justify the old rule. But:

It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.

Constitutional conservatism – divinely inspired traditional culture

In 2014, Ed Kilgore expressed concern at the Republican Party’s “hellish momentum” toward increasingly extreme positions, as ‘establishment’ Republicans adopted the views of the Tea Party. “There’s remarkable near-unanimity in favor of hard-core positions on fiscal matters, the economy, cultural issues, and immigration–and above all a violent resistance to the idea that government can play a positive role in national life other than at the Pentagon.”

And he specifically mentioned the conservative movement’s embrace of “constitutional conservatism.”

… I do worry that the still-emerging ideology of “constitutional conservatism” is something new and dangerous, at least in its growing respectability. It’s always been there in the background, among the Birchers and in the Christian Right, and as an emotional and intellectual force within Movement Conservatism. It basically holds that a governing model of strictly limited (domestic) government that is at the same time devoted to the preservation of “traditional culture” is the only legitimate governing model for this country, now and forever, via the divinely inspired agency of the Founders. That means democratic elections, the will of the majority, the need to take collective action to meet big national challenges, the rights of women and minorities, the empirical data on what works and what doesn’t–all of those considerations and more are so much satanic or “foreign” delusions that can and must be swept aside in the pursuit of a Righteous and Exceptional America. … Some of the moneyed interests bankrolling the GOP and the conservative movement probably just view all the God and Founders talk as a shiny bauble with which to fool the rubes, but others–notably the Kochs–seem to have embraced it as a vehicle for permanent domination of American politics.

A very conservative, aggressively activist Supreme Court

On July 2, 2018 Erwin Chemerinsky, Dean of the UC Berkeley School of Law, in a more scholarly analysis of the Supreme Court (following the 2017-2018 term), focused on the activism of the conservative majority and its fealty to the agenda of the Republican Party:

The just completed Supreme Court term will come to be regarded as the beginning of a new era in constitutional history: a time of a very activist Court that aggressively follows the conservative political agenda. This term was the most conservative since October 1935, when the Supreme Court repeatedly declared unconstitutional key New Deal laws. The 2017–2018 term was a year filled with cases of unusual importance, and the conservative position prevailed in almost every case.

…

What explains the decisions of October term 2017 is not any principle like judicial restraint or originalism, but simply the conservative values of the majority of the justices. The justices were adhering to the vision of the Republican platform. As Justice Kagan expressed in her powerful dissent in Janus v. American Federation, where the Court overruled a 40-year-old precedent and held that non-union members cannot be forced to pay the share of the union dues that support collective bargaining, the Court’s decision was rooted in neither precedent nor sense. The Court ruled for Janus “because it wanted to.”

The dean cites four cases from the Court’s last term decided 5-4 that “reflect a Court following the conservative political agenda, regardless of precedent or the usual conservative desire to adhere to the original understanding of the Constitution.” They are:

• Janus v. American Federation (overturning a 41-year-old precedent  to end “fair share” contracts, which required employees at union shops, who declined to join the union, to pay a portion of union dues that covered collective-bargaining activities)
• National Institute of Family and Life Advocates v. Becerra (striking down the California FACT Act, which ensured that religiously-affiliated crisis pregnancy centers, disguised as medical centers, provided women with complete information regarding their options – including access to reproductive health services)
• Trump v. Hawaii (reversing an appellate court ruling that invalidated Trump’s travel ban)
• Epic Systems v. Lewis (rejecting employees’ rights to class action suits or class arbitration, contrary to the 1935 National Labor Relations Act, which was upheld by SCOTUS in 1937)

Conservative dreams of a 21^st century Lochner Era

For most of our history the Supreme Court has been a powerful conservative – anti-democratic (small ‘d’) – force to suppress change. (The Warren Court of the ’fifities and ’sixties was an anomaly, as was SCOTUS well into the ’seventies, when Roe v. Wade was decided.) During the Lochner Era (which scholars generally agree began by the last decade of the 19^th century and ended in 1937), the Supreme Court struck down hundreds of federal, state, and local laws – deemed to interfere with “freedom of contract” /economic liberty /the free market – enacted to protect workers and consumers.

Lochner v. New York (the case that gave the Lochner Era its name) struck down as unconstitutional a labor law that limited bakery workers’ hours to 10 hours a day and 60 hours a week.  During this era, the Court struck down child labor laws, minimum wage laws, bans on “yellow dog” contracts, other laws to assist in union-organizing, and legislation to regulate industry, and – of course – significant New Deal measures introduced by Franklin Delano Roosevelt in his first term as president.

Chemerinsky predicts that the activist justices that form the Court’s majority – “whose jurisprudence is based on the Republican platform” – will vote to overrule:

• Roe v. Wade,
• affirmative action, and
• the exclusionary rule when police violate a suspect’s Constitutional rights.

He mentions the likely suppression of LGBT rights and rejection of equal rights challenges to partisan gerrymandering as well.

Chemerinsky doesn’t venture a prediction about decades of rulings since the New Deal permitting the regulation of business. But a number of libertarian legal scholars and Senator Rand Paul have argued that Lochner v. New York was correctly decided, because it freed business from the regulatory state.  

Liberals may think that the Roberts Court is already too willing to strike down laws and regulations — for instance, overturning campaign finance restrictions and part of Obamacare. But Paul wants the justices to go much further. He sharply criticized Chief Justice John Roberts for failing to overturn the full health law, saying, “Justice Roberts laid down the gauntlet and said judicial restraint means the majority can do whatever they want, basically.”

The immediate future of the Supreme Court – and of U.S. District and Circuit Courts – will more closely resemble the Court of the Lochner Era, than the Warren Court (and several that followed closely behind, when Republican-appointed justices – Stevens, Souter, Powell, O’Connor, and Kennedy – at least occasionally sided with the liberals). The authority of many federal agencies that make and enforce rules – the Environmental  Protection Agency, the Federal Communications Commission, the Federal Trade Commission, the Security and Exchange Commission, the Consumer Financial Protection Bureau, the Federal Election Commission … to list only a handful – may be challenged by an activist Supreme Court majority. We will be living a nightmare for years to come.

(Photo: wikipedia.)