On Wednesday, President Obama published a brief piece at SCOTUSBlog outlining “some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.” Most of it is fairly unsurprising. We learn, for example, that the president intends to pick someone who “will be eminently qualified” and that they will have demonstrated “a mastery of the law.” Obama also says that he will pick a judge with “an understanding of the way the world really works,” a statement that seems uncontroversial but that also hearkens to Justice Ruth Bader Ginsburg’s warning that the Court’s conservatives do not understand “the realities of the workplace” in a famous pay discrimination case.
The most revealing line in Obama’s piece, however, is easy to miss, as it is easy to mistake as the kind of empty rhetoric against judicial activism that presidents often unveil when speaking about the Supreme Court. Obama says that “the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law,” and this line says a surprising amount about the particular kind of liberalism he hopes to bring to the nation’s highest Court.
Obama’s laid out a similar vision of the role of the judiciary in more detail before. In his book The Audacity of Hope, the future president worried about “a perception that [Democrats] used the courts and lawyers and procedural tricks to avoid having to win over popular opinion.” Obama “wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.”
As a former constitutional law professor, Obama is undoubtedly familiar with the constitutional debates that roiled among liberals during the middle part of the twentieth century. For the first third of this century, and much of the prior century as well, the justices often acted as enforcers of a laissez-faire ideology — busting unions and even striking down child labor laws, to give just two examples.
Thus, for much of the twentieth century, liberal constitutional thinkers were far more focused on devising ways to restrain the judiciary than they were finding ways to invigorate constitutional rights that had long laid dormant. Yet, especially as the Court grew more liberal in the middle part of the century, justices who shared a disdain for the economically libertarian decisions of prior decades began to bicker over the appropriate role of the judiciary. At one end of the spectrum, Justice Felix Frankfurter fetishized judicial restraint to such a degree that, as I explain in my book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, he was deeply conflicted over whether the Court should strike down public school segregation in Brown v. Board of Education. At the other end of the spectrum, Justice William Douglas behaved very much like a liberal mirror image of Justice Samuel Alito, often appearing to start with the result he wanted and work backwards to find a way to get there.
Barack Obama is not Felix Frankfurter — his support for the Court’s marriage equality decision, among other things, shows that Obama believes that courts should play a much greater role in vindicating constitutional rights than Frankfurter would have found acceptable. But Obama’s public statements on the Court make it very clear that he does not want to put another William Douglas on the Court either, and that could have tremendous implications if liberals succeed in consolidating control of the bench.
When adherents to any particular political ideology control the Court for a fair amount of time, it is only natural that their advocates will begin testing the waters to see just how much the justices are willing to give them. The Supreme Court term that ended last June, for example, ended with a string of liberal victories. Obamacare survived a second trip to the Supreme Court. An effort to drastically limit federal housing discrimination law failed, as did a case challenging an anti-gerrymandering commission. Altogether, SCOTUSBlog’s Tom Goldstein noted, liberals prevailed in 8 of the term’s 10 most significant cases.
Yet, with at least one very notable exception (the Court’s marriage equality decision), the full story of the Court’s last term was a tale of a conservative Court balking at too-aggressive lawsuits. As four political scientists explain in a 2009 paper, when the Supreme Court moves to the right, conservative lawyers are more likely to “press their luck to take advantage . . . appealing more cases they lost in lower courts.” Indeed, cases like King v. Burwell, where the plaintiffs effectively argued that much of the text of the Affordable Care Act does not count, probably never would have been brought at all if the conservative lawyers and interest groups behind that case were not unusually confident that their friends controlled the Supreme Court.
A similar narrative played out in the 1970s, although with liberals in the role of the boundary-testing advocates. Emboldened by the civil rights decisions of the Warren Court, liberal advocates also started bringing aggressive lawsuits seeking to move American law to the left. Unfortunately for these advocates, some of their most ambitious cases reached the Court shortly after conservative President Richard Nixon appointed four new justices to the Supreme Court. Thus, for example, in San Antonio Independent School District v. Rodriguez, the Court rejected a challenge to a public school funding system that effectively ensured that rich school districts would have more resources than poorer ones.
Should Obama succeed in filling Scalia’s seat, the Court will have a liberal majority for the first time since before Nixon remade its membership. For the early years of this reconstituted Court, liberal advocates will probably be kept busy seeking changes that enjoy wide support throughout the Democratic coalition and strong support in accepted legal doctrine — such as overruling Citizens United, restoring the Voting Rights Act, and striking down voter suppression laws such as voter ID. Eventually, however, the tree of justice will run out of low-hanging fruit. When that happens, liberal advocates will find themselves in the same position conservatives were in when they filed King — confident, maybe even overconfident, in their chances of success if they bring more and more ambitious lawsuits.
This is when it will matter a great deal that Obama believes he should appoint judges who recognize “the limits of the judiciary’s role.” At some point — probably much sooner than many liberal groups would like — Obama’s justices will call a halt to attempts to move the law to the left through litigation. If there is a liberal equivalent of King v. Burwell, it will lose. Badly.
Senate Republicans may also want to bear this prediction in mind when they decide whether to sign onto Majority Leader Mitch McConnell’s (R-KY) strategy of refusing to confirm anyone to fill the vacant Supreme Court seat “until we have a new President.” There is no guarantee that Hillary Clinton or Bernie Sanders will share Obama’s concerns about relying too much “on the courts to vindicate not only our rights but also our values.” Nor is there any guarantee that a president flush with victory will be as eager to seek moderation as a president who knows they are facing an arduous confirmation fight at the end of their tenure in office.
Depending on who the next president would choose as their nominee, Senate Republicans may regret not taking Obama’s offer.