Adam Liptak, the New York Times’ excellent Supreme Court reporter, posed the question “How Activist Is the Supreme Court?” in a piece that ran last weekend. His answer: not so much. Despite high profile cases such as the Citizens United opinion injecting unlimited corporate spending into elections and the Shelby County decision striking an important provision of the Voting Rights Act, Liptak argues that “these decisions are outliers when measured against the court’s overall record over the last nine years.” His primary evidence for this claim is that the Roberts Court invalidated fewer federal, state and local laws as a percentage of its overall cases than the Court under Chief Justices Warren, Burger and Rehnquist.
There’s no reason to doubt the data Liptak cites, but it’s not at all clear how useful raw percentages are in judging the impact of the Court. The Court’s attack on the Voting Rights Act has already emboldened conservative lawmakers to enact sweeping voter suppression laws that never would have survived scrutiny prior to the Roberts Court’s decision. Meanwhile, on the liberal side of the ledger, the Court’s decision invalidating the Defense of Marriage Act will extend the blessings of liberty to millions of married couples previously denied equality under federal law. But the raw data in the New York Times’ analysis gives these landmark decisions the same weight as, say, an obscure First Amendment case invalidating a mushroom advertising campaign in determining how the Roberts Court’s “activism” compares to its predecessors.
As Liptak notes, “[i]t is perhaps unsurprising that the liberal court led by Chief Justice Earl Warren from 1953 to 1969 invalidated federal, state and local laws at almost twice the rate of the Roberts court,” but it is also important to understand the unusual history that led to the Warren Court striking so many laws. After the Civil War, America ratified three constitutional amendments to abolish slavery, end racial apartheid and ensure that all Americans would enjoy certain basic liberties. The Supreme Court spent the next thirty years largely writing these three amendments out of the Constitution. Cases like Plessy v. Ferguson endorsed segregation, while others ensured that states could continue abridging the liberties protected by the Bill of Rights.
Two historic shifts in American constitutional law culminated during the Warren Court. The first, of course, was Brown v. Board of Education and similar decisions integrating the South and breathing life back into the Constitution’s guarantee of equality under the law. The second shift was the “incorporation” of the Bill of Rights, a project led by Justice Hugo Black, which established that states are not permitted to violate most of the rights protected by the Constitution’s earliest amendments.
While neither of these shifts began under Earl Warren’s tenure, they flourished shortly after Warren joined the Court in 1953 — nearly a century after the Reconstruction Amendments were ratified. The upshot of this is that, during the more than eight decades after the Thirteenth, Fourteenth and Fifteenth Amendments were ratified, states were largely free to enact laws violating these amendments and many of them did so with great gusto. This is why it is unsurprising that the Warren Court was more prone to strike down laws that the Roberts Court — the states had built up quite a backlog of unconstitutional laws before Chief Justice Warren joined the Court.
Additionally, while it may very well be true that the Roberts Court’s justices are less prone to declare a law unconstitutional than their immediate predecessors, this metric ignores a significant tool the Court’s five current conservatives use to roll back progressive legislation. To give one example, these five justices have been particularly harsh towards workers. In recent years, they’ve handed down decisions making it easier for bosses to get away with racial or sexual harassment. They’ve limited the rights of older workers and victims of workplace retaliation to be free from discrimination. They’ve erected new barriers to workers seeking to sue their employers, and, of course, there was the Ledbetter case.
Technically, none of these decisions “invalidated” any laws — they merely redefined existing laws to write many workers out of the law’s protections — but that’s cold comfort to the men and women rendered defenseless against their employers by the Roberts Court.
In other words, the data relied upon by the New York Times is not particularly informative, even though it is almost certainly accurate. There are many ways for a Court to cause mischief that do not involve striking down a state or federal law. And this particular Court is unusually good at finding these ways.