Hey, Liberals, Stop Taking Cases to the Supreme Court

By Ian Millhiser, Slate Magazine

21 May 14

ere are the issues where Justice Anthony Kennedy—the ostensible “swing vote” on the Supreme Court—fairly consistently votes with his more liberal colleagues: gay rights, the death penalty, Guantanamo Bay.

Now here are just a few issues where Kennedy votes as a reliable conservative: campaign finance, workplace discrimination, affirmative action, health care, religion, class actions, forced arbitration, whether George Bush or Al Gore should be president, public school segregation, voting rights, partisan gerrymandering, and abortion.

The last item on that list may surprise a few people, since Kennedy did vote in the 1992 case Planned Parenthood v. Casey, that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.” But Casey also significantly rolled back the right to choose an abortion that was originally recognized in Roe, and it is the only case where Kennedy even arguably cast a pro-choice vote. In every other Supreme Court case Kennedy has ever heard concerning a restriction on abortion rights, he has always voted to allow the restriction to go into effect.

So, if you want to lay odds on what will happen the next time a supporter of abortion rights brings a case to Kennedy’s courtroom, the smart money says that he will almost certainly vote to narrow the right to choose—just as he will vote with his conservative colleagues on a myriad of other issues. The current Supreme Court is not, as it is often perceived, a cabal of four conservatives matched up against four liberals, with Kennedy holding the balance of power in between. The Supreme Court is made up of four conservatives who don’t much care for gay rights and one conservative who thinks gay people are cool but he doesn’t know how far to take it.

In short that means this: If you are a liberal, and you aren’t trying to marry your same-sex partner, you should probably try to keep your case away from the justices.

Liberal lawyers, however, have not always heeded this advice. Consider the court’s recent decision in Town of Greece v. Galloway, which upheld a town council’s practice of opening legislative sessions with mostly Christian prayers. Kennedy has long complained that his liberal former colleagues show an “unjustified hostility toward religion.” He also believes that the long-standing ban on government endorsements of religion “is flawed in its fundamentals and unworkable in practice.” Yet Kennedy was powerless to do anything about the decisions he disagreed with until 2006, when President George W. Bush replaced the moderate conservative Justice Sandra Day O’Connor with the ultraconservative Justice Samuel Alito. Now, there are almost certainly five justices who share Kennedy’s views on religion.

So why on Earth would a team of lawyers who support the idea of a wall of separation between church and state give Kennedy the perfect opportunity to blow a hole in it? Town of Greece was originally filed in 2008, two years after Alito joined the court.

The same can be said about Schuette v. BAMN, a challenge to Michigan’s ban on affirmative action. This ban was enacted in response to a 5–4 decision by O’Connor, which upheld the University of Michigan Law School’s affirmative action program. When Alito replaced O’Connor, he gave the court’s conservatives the fifth vote they needed to end race-conscious admissions programs in their entirety. Though these five conservatives recently resisted the temptation to abolish the University of Texas’ affirmative action program outright, it is doubtful that decision was anything more than a temporary stay of execution.

And yet, just months after Alito joined the court, affirmative action supporters filed a lawsuit challenging Michigan’s ban on the practice. Did they seriously think they could win?

The mistake that lawyers in both of these cases made was in assuming that, just because they were able to cite precedents supporting their position, that they had a chance of prevailing in the conservative Roberts court. In Town of Greece, the plaintiffs relied principally on Lee v. Weisman, where Justice Kennedy held, along with a left-leaning bloc of four other justices, that a public school could not open its graduation ceremony with a prayer. Lee, however, is an anomaly. Kennedy has spent his career railing against judicial “hostility” toward religion. Betting that he would hand down another such outlier is a dangerous game, especially because the court has historically shown far greater deference to legislative prayer sessions than it has to school-sponsored religious activity.

Likewise, in Schuette, the plaintiffs relied on a pair of Supreme Court decisions—the most recent of which is more than 30 years old—that prevent states from erecting certain obstacles to racial minorities seeking protection from discrimination. Both of these decisions, however, were handed down by much more liberal justices than the ones who dominate the Roberts court, and the more recent of these cases was a mere 5–4 decision when it was decided in 1982. One of the dissenters was Justice O’Connor.

In other words, in order to win their case, the plaintiffs’ attorneys in Schuette had to convince at least one of the five conservative justices, every one of whom is well to O’Connor’s right on issues of racial justice, to embrace a liberal view O’Connor herself rejected. As it turns out, they weren’t even able to convince all of the court’s more liberal members to embrace this view. Clinton-appointed Justice Stephen Breyer agreed with the conservatives that Michigan could ban affirmative action if its voters choose to do so.

Say all you want about the aspiration for judicial neutrality. The truth is that just because you think you have the law and precedent on your side, it doesn’t mean the justices will follow those precedents. This is a lesson that, frankly, liberals should have learned two years ago.

In the lead up to the Supreme Court challenge to the Affordable Care Act, the law’s supporters openly mocked the legal arguments against Obamacare—and with good reason. A leading conservative judge who received the Presidential Medal of Freedom from George W. Bush wrote that the case against Obamacare has no support “in either the text of the Constitution or Supreme Court precedent.” Another judge—one of Bush’s shortlisters for the Supreme Court—warned that a decision striking down health reform would be “a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.” An American Bar Association poll of Supreme Court experts taken shortly before the court heard the case found that 85 percent of these experts believed that Obamacare would be upheld.

But liberal mockery transformed into despair after the court heard arguments in this case. We now know that the conservative justices came within a hair of striking down the landmark health care law, regardless of the fact that neither the Constitution’s text nor the court’s own precedents supported such a result.

Liberal justices are hardly immune to this tendency to toy with doctrine in order to reach a desired result—if you don’t believe me, try reading Justice William Douglas’ opinion in the contraception case Griswold v. Connecticut with a straight face. But there is no one on the court today as progressive as Justice Douglas. And there are five justices who are eager to dismantle the precedents that Douglas and his fellow liberals handed down during the brief period when they controlled the Supreme Court. Many of them want to do even more than that. The case against Obamacare clashed with nearly 200 years of Supreme Court precedent. It also clashed with an opinion written by the Federalist Society stalwart Antonin Scalia.

It may sound cynical to urge liberals to avoid the Supreme Court until some of its members are replaced, but the court’s current majority has given lawyers plenty of reason to be cynical.

Democrats Need Bernie Sanders to Run for President

By Michael Kazin, New Republic

21 May 14

ernie Sanders may actually run for president. The feisty Senator from Vermont is giving dinner speeches in Iowa, telling journalists he’s “prepared” to campaign, and is deciding whether he wants to compete for the Democratic nomination or take the “radical” step of heading an independent ticket. Assuming he rejects the Naderish option, which would upset many of his admirers who recall the 2000 debacle, a Sanders run could be excellent news for Democrats—in the next presidential race and beyond.

At a minimum, it would make the Democratic primary about more than the deeds and personality of Hillary the inevitable. Sanders, as eloquent a voice of left-wing populism as exists in the land, would press Clinton to support doubling the current minimum wage, imposing higher taxes on the wealthy, and increasing entitlement payments instead of reducing them in a “grand bargain” with Republicans. He would also push her to explain how she would end the dominion of big money in politics, long one of his signature issues. Sanders has introduced a constitutional amendment that would overturn the Supreme Court’s decision in the Citizens United case. According to multiple polls, these are all popular positions—among independents as well as Democrats. But without a shove from the left, Clinton is likely to stick to a mushy moderation, hoping a lengthy battle inside the GOP will result in a nominee too right-wing for the majority of the electorate to stomach.

A Sanders campaign could also excite and mobilize some of the young people who have grown disenchanted with Obama’s achievements, yet still hold strongly progressive views. Many who supported the president in 2012 in order to defeat Mitt Romney are now cynical and disengaged. Since Occupy faded away, progressive activists have lacked a big, unified cause to fight for; they would probably flock to the white-haired senator who has been known to call himself a democratic socialist. So might other millennials, and their younger siblings who, after Obama was elected in 2008, mistook him for a movement leader rather than a new president who faced the dual challenges of a deep recession and an opposition party determined for him to fail.

Since his days as a civil rights organizer half-a-century ago, Sanders has always been the antithesis of a deal-making, ideologically fickle politician. In December 2010, he held the Senate floor for eight-and-a-half hours with a speech denouncing the bipartisan tax bill that Obama had just signed, which kept in place cuts for top earners passed while George W. Bush was in the White House. Sanders blasted “the crooks on Wall Street whose actions resulted in the severe recession we are in right now; the people whose illegal, reckless actions have resulted in millions of Americans losing their jobs, their homes, [and] their savings.”

His tough consistency on economic issues might also persuade some of the white working-class voters who now vote Republican, without much enthusiasm, to take a fresh look at the party that established Social Security, Medicare, and the National Labor Relations Act. Sanders, after all, did not score landslide victories in 2006 and 2012 (with 65 percent and then 71 percent of the vote) by appealing just to the one-third of the adults in his overwhelmingly white state who earned a college degree.

There is, of course, a danger that an aggressive campaign against Hillary Clinton in 2016 would expose divisions between Democrats—of gender as well as ideology—and weaken her for the main contest that fall. Historians and political scientists generally agree that a party that undergoes a long primary season finds it more difficult to win the general election. But that's generally true only for those incumbent presidents—like Jimmy Carter in 1980 and George H.W. Bush in 1992—whose political woes already made them vulnerable to competitors. In contrast, vigorous debates and a series of close primaries and caucuses helped Ronald Reagan in 1980 shed his image as a dogmatic right-winger. Twelve years later, they gave Bill Clinton a chance to show off his political skills as “the comeback kid” after the revelation of a past affair almost drove him from the race. If there had been no long, tense battle among Democrats in 2008, Barack Obama would not have become president at all.

Unless American politics takes a sudden, unprecedented lurch to the left, Bernie Sanders has little chance of winning the Democratic nomination. Progressive voters in both red and blue states may agree with his positions and appreciate the passion with which he states them. But most are unlikely to prefer a man in his mid-70s to the celebrity stateswoman whose election would “make history” and whose appeal extends beyond partisan lines.

But if Sanders does run, he could perform a vital political service to Democrats in need of revitalization and to the country at large. Except for a small minority of dogmatic conservatives, Americans don’t like the fact that rich investors have profited handsomely while wages remain stagnant or are eager to balance the budget by cutting Social Security or believe that politicians who routinely lavish their favors on multi-millionaires can also serve the interests of people who worry about paying the mortgage. A left-wing candidate who bluntly and repeatedly points all this out could embolden Hillary Clinton and other timid Democrats to do the same. Winning control of the government with such rhetoric—and policies to match—might actually nudge us further toward becoming a more decent and truly democratic society.