The Future Of the Supreme Court If Romney Wins

By Ian Millhiser, Center for American Progress Action Fund

24 September 12

he most important legal development in the last decade is the Republican Party's wholesale abandonment of judicial restraint. Less than a decade ago, President George W. Bush campaigned against "activist judges" who seize the power to "issue new laws from the bench." And Bush's Supreme Court appointees peppered their confirmation hearings with the rhetoric of restraint. Chief Justice John Roberts said that he would "prefer to be known as a modest judge," and he emphasized that when judges make policy judgments, "they lose their legitimacy." Justice Samuel Alito expressed similar sentiments, warning that judicial decisions should be narrow and focused on the facts of a particular case:

"[I]f judges begin to go further and announce and decide questions that aren't before them or issue opinions or statements about questions that aren't before them, from my personal experience, what happens when you do that is that you magnify the chances of getting something wrong. . . . [I]t makes for a better decision if you just focus on the matter that is at hand and what you have to decide and not speak more broadly.

Whatever Justices Roberts and Alito believed during their confirmation hearings, however, it rapidly became clear that they have little interest in restraining themselves. In their first full term together, both justices joined an opinion overruling a very recent abortion precedent because "some women come to regret" their own choices when they are allowed to make them.They claimed that a plan to desegregate public schools violates Brown v. Board of Education. And they infamously cut back on women's right to equal pay for equal work in the Ledbetter decision that was later overturned by an Act of Congress.

In later terms, the Court's conservatives pushed to immunize corporations from state consumer protection law.They expanded corporations' ability to force consumers to sign away their ability to enforce their rights in a court of law. And they massively expanded wealthy interest groups' power to use their substantial fortunes to influence elections. They are widely expected to end, or at least dramatically roll back, affirmative action in public university admissions this coming term. And in Citizens United v. Federal Election Commission, the conservative justices reached far beyond the question presented to them in order to sweep away decades of law prohibiting corporate efforts to influence elections. So much for "focus[ing] on the matter that is at hand" and "not speak[ing] more broadly."

None of this is to say, of course, that the Roberts Court can always be counted on to intervene in politically charged cases. To the contrary, on issues such as voting rights, where the Supreme Court has historically stood as one of democracy's most important guardians, the Court's conservatives have largely abdicated this essential role.

Moreover, as audacious as the conservative justices have been, their activism pales in comparison to Republican elected officials' judicial wish list. The legal case against the Affordable Care Act has, in the words of a top conservative judge who was awarded the Presidential Medal of Freedom by former President George W. Bush, no basis "in either the text of the U.S. Constitution or Supreme Court precedent." Now, however, belief in the law's unconstitutionality is akin to gospel among Republican partisans (including four of the five conservatives on the Supreme Court). And for many Republicans, this constitutionally challenged assault on health reform is only the first item on a much longer list. As a Center for American Progress report documented last year, numerous top Republican lawmakers-governors, senators, and other members of Congress-are on record claiming that everything from Social Security to federal child labor laws to Medicare to the national ban on whites-only lunch counters is unconstitutional.

So while conservative judges use their dominance on the federal judiciary to implement many of the GOP's deregulatory goals and slant the electoral playing field in a way that helps elect more Republicans, GOP elected officials are pushing these judges to become even more aggressive. If former Massachusetts Gov. Mitt Romney wins the presidential election in November, this Republican dominance will only be solidified. Moreover, as four of the Supreme Court's current members are over the age of 70, Gov. Romney will likely be able to shift the Court even further to the right. If President Barack Obama should win a second term, by contrast, he could replace Justices Antonin Scalia, Anthony Kennedy, or another member of the Court's conservative bloc, potentially giving the Court a progressive majority for the first time since the early days of the Nixon administration.

This report will explain several of the narrowly decided cases which have reshaped worker and consumer rights and changed the face of our democracy, as well as some narrow misses where the conservative bloc failed to gain a majority to achieve a Republican-favored outcome. Additionally, this report explores the future legal landscape, which will likely turn on the outcome of the upcoming presidential election. If President Obama prevails in November, many of the justices' incursions on consumers, workers, and voters would likely be reversed in a matter of just a few years if the president has the opportunity to replace one of the Court's five conservatives. Should Gov. Romney prevail, by contrast, his appointments could affect a massive transfer of power from the two branches-executive and legislative-the American people elect to the one branch-judicial-that would likely be controlled by Republican-nominated conservative judges for a generation or more.