The Supreme Court Has Leaned Right for Decades. Is That About to Change?

By Jeffrey Toobin, The New Yorker

26 September 16

 

There has not been a liberal majority of Justices since Nixon was President. If Hillary Clinton is elected, that will change.

istory, as a rule, unfolds slowly at the Supreme Court. The Justices serve for decades. The cases take years. The Court’s languorous work schedule includes three months of downtime every summer. But the death of Antonin Scalia, earlier this year, jolted the institution and affirmed, once again, a venerable truism, attributed to the late Justice Byron White: “When you change one Justice, you change the whole Court.” For the first time in two generations, the Court’s liberals were ascendant. After many years of liberal Justices struggling to win big cases, suddenly they couldn’t lose them. But this, too, might represent only a brief interregnum. The future of the Supreme Court always depends principally on the outcome of Presidential elections; this year’s race will have a nearly immediate impact on the fate of the Court. But the changes may only begin with a replacement for Scalia. Stephen Breyer is seventy-eight, Anthony Kennedy is eighty, and Ruth Bader Ginsburg is eighty-three. If all of them have to be replaced in the coming four years, the next President will have a Supreme Court legacy comparable to that of Richard Nixon, who filled four vacancies in a little more than two years, or Ronald Reagan, who filled four vacancies in seven years, or Dwight Eisenhower, who filled five vacancies in five years.

The membership of the Court now reflects the partisan divisions in the rest of the country, where crossover voting rarely takes place anymore. There are only four Republican appointees on the Court: Chief Justice John G. Roberts, Jr. (nominated by George W. Bush), Kennedy (Ronald Reagan), Clarence Thomas (George H. W. Bush), and Samuel Alito (George W. Bush). They are matched by four Democratic appointees: Ginsburg (Bill Clinton), Breyer (Clinton), Sonia Sotomayor (Barack Obama), and Elena Kagan (Obama). “There has not been a definitively liberal majority on the Supreme Court since Nixon was President,” Noah Feldman, a professor at Harvard Law School, said. “Ever since then, liberals have sometimes managed to cobble together majorities to avoid losing—on issues like affirmative action and abortion—but the energy and the initiative have been on the conservative side. That stopped, at least for now, this year.”

Scalia’s final vote as a Justice provided an apt symbol for the state of the Court at that moment. The case combined several of the conservatives’ pet peeves, which include environmental protection, unilateral executive action, and, especially, Obama himself. “Judicial conservatives for a long time believed in a very powerful executive branch, but in more recent years there has been sharp skepticism toward Presidential power,” Justin Driver, a professor at the University of Chicago Law School, told me. “A skeptic might say the real issue is who is the occupant of the Oval Office. Certainly, there has been a noticeable amount of hostility to President Obama’s executive authority on the right.” In the summer of 2015, the Environmental Protection Agency issued a long-awaited regulation aimed at combatting climate change, requiring electric power plants to sharply reduce their emissions. “It was probably the most important environmental regulation in history, since power plants account for about half of the carbon-dioxide emissions in the country,” Richard Revesz, a professor at New York University School of Law, said.

Twenty-nine states sued to block the regulation. In the United States Court of Appeals for the D.C. Circuit, an ideologically diverse panel of three judges unanimously declined to stay the regulation while the case proceeded. Nevertheless, the five Republican appointees on the Supreme Court blocked the regulation from going into effect. “It was totally unprecedented for the Supreme Court to step in and grant a stay when the D.C. Circuit had denied the stay and was still looking at the merits of the case,” Revesz said. “It reflected an attitude of hostility toward the Obama Administration.” Even though the record of the case consisted of thousands of pages, the Supreme Court imposed the stay in just a few days. The last briefs in the case were filed with the Justices on Friday, February 5th, and they imposed the stay, by a vote of five to four, on Tuesday, February 9th. Scalia then left for a hunting trip in Texas. He was found dead in his room, of natural causes, four days later.

One person who correctly gauged the significance of Scalia’s absence from the Court was Mitch McConnell, the Senate Majority Leader. An hour after the death was confirmed, when other politicians were offering condolences to the Scalia family, McConnell issued a statement announcing that the Senate would not allow a vote on any nominee whom President Obama might put forward for the seat. “The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new President.” Such premeditated obstruction by a Senate leader, aimed at a President with nearly a full year remaining in his term, was without precedent, but McConnell has shown no sign of wavering. (He has also said repeatedly that he will not allow a confirmation vote in the lame-duck period, after Election Day.)

The remaining Justices, too, immediately saw the significance of Scalia’s departure. Partly, this had to do with his outsized personality and his long tenure on the Court. He died at the age of seventy-nine, having served since 1986, which made him the senior Associate Justice. His energetic presence and provocative questions dominated the Court’s public proceedings. Scalia never played devil’s advocate in the courtroom; he used his queries to make arguments to his colleagues, and, just as often, to the broader public. He was best known for championing originalism—the theory that calls for interpreting the Constitution as its words were understood to mean at the time of its ratification. He was never able to bring a majority of his fellow-Justices around to this approach, but he was still on the winning side in all the great conservative victories of his era, including Bush v. Gore, which gave the Presidency to George W. Bush; Citizens United v. Federal Election Commission, which hastened a deregulation of American political-campaign funding; and District of Columbia v. Heller, for which Scalia wrote the majority opinion, recognizing for the first time an individual’s right, under the Second Amendment, to own firearms. Almost everyone at the Court missed Scalia’s voice, but it was conservatives who missed his vote. On February 29th, Clarence Thomas, Scalia’s frequent ideological ally, asked his first question in more than a decade at an oral argument. He then resumed his customary silence for the remainder of the term.

The effect of Scalia’s absence could be seen in the first major case argued after his death. Scalia’s place—to the immediate right of the Chief Justice, where the senior Associate Justice always sits—was still draped in black crêpe on March 2nd, when the Court heard Whole Woman’s Health v. Hellerstedt. In recent years, especially after the Republican landslides in the midterm elections of 2010, many states had begun to restrict access to abortion. Texas imposed especially onerous new requirements on abortion clinics, insisting that they install hospital-level equipment and that their doctors have admitting privileges at nearby hospitals. These rules, which Texas lawmakers said were designed to protect women’s health, led to the closure of twenty-three of the forty-two clinics in the state. The plaintiffs in the case argued that the new rules had nothing to do with women’s health, and were a transparent attempt to limit women’s access to abortion.

Since Scalia’s death, one rule of Supreme Court practice has dominated the deliberations of the eight remaining Justices. When the Court splits four to four, the lower-court decision is affirmed, but the Justices don’t write an opinion and the ruling does not represent a national precedent. This meant that if the four Democratic appointees voted in lockstep—as they already tended to do in controversial cases—they would not necessarily win every case, but they couldn’t lose, either. The liberals could always prevent the establishment of a new Court precedent not to their liking.

As Carrie Severino, the chief counsel of the right-leaning Judicial Crisis Network, put it, “Losing Justice Scalia on the Court created a one-way ratchet, making it so much easier to move in a liberal direction. Every time Kennedy joined the conservatives, there was just a tie, and no real precedent was made. But when Kennedy joined the liberals they could set binding precedent.”

Because Kennedy in recent years had appeared to weaken in his support for abortion rights, the case had initially seemed like a possible vehicle for the conservatives to impose severe limits on the rights guaranteed to all women by the Court in Roe v. Wade. But Scalia’s death reversed the odds. Texas’s abortion restrictions had been upheld by the Court of Appeals for the Fifth Circuit, the most conservative circuit in the country, and a tie would affirm the ruling—but only in that region.

So when the liberal Justices entered the courtroom on March 2nd they did so confidently. Scott Keller, the Texas solicitor general, opened his remarks by pointing out that most of the state’s big cities still had abortion clinics. Ginsburg pounced, asking, “Well, how many women are located over a hundred miles from the nearest clinic?” About a quarter of the women in the state, Keller said, adding that clinics in New Mexico were also available to Texas women. “That’s odd that you point to the New Mexico facility,” Ginsburg replied. New Mexico imposed none of the requirements that Texas had established. “If that’s all right for the women in the El Paso area, why isn’t it right for the rest of the women in Texas?” she asked.

The Justices often ask lawyers challenging questions, but the liberals, in a rare departure, took control of the courtroom. The Chief Justice manages the arguments and decides when the questioning of lawyers must cease. John Roberts is less of a stickler for protocol than his predecessor, William Rehnquist, but in the Texas case Sotomayor talked over him when he tried to stop Stephanie Toti, the lawyer representing the Texas clinics. And, when Toti wanted to elaborate on an answer after her time had expired, it was Ginsburg who suggested that she be allowed to continue. Roberts meekly acceded. In tone and in substance, the liberals were sending the message that they were in charge.

The legal world took note. Just after Scalia’s death, Dow Chemical announced that it would settle an antitrust case against the company for eight hundred million dollars. Liberals are known to be sympathetic to antitrust plaintiffs, so Dow decided not to chance an appeal before the Justices. On March 4th, the Justices met in their regular Friday conference to cast their preliminary votes in the Texas abortion case. The result would not be released until the end of the term, in June, but the Court gave a clear hint where it was heading. It overruled the Fifth Circuit in a different case and blocked the implementation of a Louisiana law that would have forced all but one of the state’s abortion clinics to close. In another ruling issued that week, the Court rejected a request from Michigan and other mostly Republican-led states to stay a new E.P.A. regulation that would reduce mercury emissions from power plants. The legal issue was not identical to the one in the climate-change regulation, which the Court had just stopped, but the cases were close enough to highlight the contrast. With five votes, the conservatives could block the Obama E.P.A.; with just four, less than a month later, they couldn’t.

Under ordinary circumstances, President Obama’s nomination of Merrick Garland to replace Scalia, which the President announced on March 16th, might have aroused little controversy. After graduating from Harvard Law School, Garland served as a law clerk for William J. Brennan, Jr., the liberal lion of the Supreme Court, but Garland’s trajectory has reflected technocratic excellence rather than ideological passion. He worked in private practice and as a prosecutor, and, as a Justice Department official in the Clinton Administration, he supervised the prosecution of the Oklahoma City bombers. In 1997, Bill Clinton nominated him to the D.C. Circuit, where he earned a reputation as moderately left of center but hardly controversial.

As a Democratic President’s choice for the Supreme Court, Garland had much to commend him to Republicans. In nearly two decades on a generally conservative court, he had rarely protested his colleagues’ rulings, writing, on average, less than one dissenting opinion a year. And Garland was already sixty-three, meaning that his career was likely to be shorter than those of most Justices on the Supreme Court.

It was possible to see Obama’s nomination of Garland as a kind of peace offering to McConnell. If that was the theory, the gambit failed. Some Republicans agreed to conduct the traditional courtesy meetings with the nominee, but none suggested that Garland deserved a confirmation hearing, much less an up-or-down vote. Because the majority party controls the agenda in the Senate, the President was powerless to do more than protest.

Still, it became apparent in the spring that Obama, and the liberal quartet on the Supreme Court, would begin to reap the benefits of seven years of Obama’s lower-court appointments. This success owed as much to Harry Reid, the Democratic leader in the Senate, as to the President. While Reid was Majority Leader, especially in the period before the 2014 midterm elections, he put judicial confirmations at the top of his agenda. Faced with Republican filibusters, he and his fellow-Democrats deployed the so-called “nuclear option,” rewriting the Senate rules so that lower-court judges could be confirmed by a simple majority vote. Once McConnell took over as Majority Leader, he all but ceased allowing votes on Obama’s judicial nominees (not just for the Supreme Court), but by that point Reid had enabled Obama to remake the federal judiciary. Obama has appointed three hundred and twenty-nine federal judges, more than a third of the total. They include two on the Supreme Court, fifty-five on the courts of appeals, two hundred and sixty-eight on the district courts, and four on the Court of International Trade. (Obama’s totals are roughly in line with those of his predecessors: George W. Bush appointed three hundred and twenty-four judges, and Bill Clinton appointed three hundred and seventy-two.) More to the point, Democratic appointees now dominate most of the courts of appeals. When Obama took office, only three of the thirteen appellate courts had more Democrat-appointed judges than Republican-appointed judges. Now nine do. This means that more cases come to the Supreme Court after liberals have prevailed in the courts of appeals.

That’s what happened with Friedrichs v. California Teachers Association, which concerned the efforts of public-employee labor unions to collect fees from non-members. Undermining the financial viability of unions, which generally support Democratic candidates, has long been a conservative cause; on the Supreme Court, it is most closely associated with Samuel Alito. The Friedrichs case was argued in January, while Scalia was still on the Court, and the five conservatives seemed poised to deliver a victory. But, with Scalia gone, the Court split, and, because liberal judges had prevailed in the Ninth Circuit, the status quo favoring union rights remained intact. As Noah Feldman observed, “There has been a sense of empowerment among liberals on a whole bunch of appellate courts, in which Obama has appointed a majority of the judges. They know that if their cases go to the Supreme Court they will be protected by four-to-four votes.”

The one big liberal disappointment of the post-Scalia era also involved a four-four vote. After Congress failed to pass comprehensive immigration reform, early in Obama’s second term, the President issued an executive order to allow nearly four million unauthorized immigrants who were the parents of citizens or of lawful permanent residents to apply for a program that would spare them from deportation and provide them with work permits. Texas and other states challenged Obama’s action as an abuse of his powers under the Constitution, and a panel of the Fifth Circuit, by a vote of two to one, sided with the challengers. As is customary with tie votes, the Court’s opinion was just nine words: “The judgment is affirmed by an equally divided Court.” The millions who might have benefitted from Obama’s order returned to a state of legal limbo.

As the term came to a close, two significant cases, both of which originated in Texas, remained unresolved. The first was Hellerstedt, the challenge to the state’s restrictive abortion law, and the other was Fisher v. University of Texas at Austin, which represented the Court’s latest chance to address affirmative action in college admissions. In that case, which the Court was hearing for the second time, a white student was challenging her rejection by the state’s flagship university, which used race as a factor in weighing whether to admit a student. Both cases illustrated that, for the time being, at least, Anthony Kennedy remained the swing vote, and thus the pivotal figure on the Court.

On both abortion and affirmative action, Kennedy had appeared to drift right in recent years. In 1992, he was a co-author of the decision, in Planned Parenthood v. Casey, that reaffirmed the core holding of Roe v. Wade and held that states could not impose an “undue burden” on a woman’s right to choose abortion. But in 2007, in the Court’s last major abortion case, Kennedy had written the opinion upholding the federal law banning so-called partial-birth abortions. On affirmative action, Kennedy had always been a skeptic. He dissented from Sandra Day O’Connor’s opinion in Grutter v. Bollinger, a case decided in 2003, which sanctioned race-based admissions to foster diversity at the University of Michigan Law School. Indeed, Kennedy had always voted to reject affirmative-action programs, regarding them as violations of the equal-protection clause of the Fourteenth Amendment. The fate of affirmative action in the Fisher case looked even more perilous, because Elena Kagan recused herself from participating.

Yet, in the final week of the term, Kennedy sided with the liberals in both cases. Thanks to his vote, the Court rejected Texas’s restrictions on abortion clinics and upheld the affirmative-action plan at the university. Roberts, along with Thomas and Alito, dissented, so Kennedy, as the senior member of the majority, had the privilege of assigning the opinion in Hellerstedt. He gave it to Breyer, who provided the Court’s clearest defense of abortion rights in more than two decades. Breyer said that neither the hospital-level-equipment requirement nor the admitting-privileges rule “offers medical benefits sufficient to justify the burdens upon access that each imposes.” He went on, “Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”

Kennedy assigned himself the affirmative-action opinion, and seemingly went even farther in endorsing the university’s interest in attracting a diverse student body than O’Connor did in Grutter. O’Connor suggested a limit of twenty-five years for the use of race in admissions. In Fisher, Kennedy imposed no such limit, saying that “considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” As has often been the case with Kennedy, outsiders were left to speculate about his motives. “It’s possible that Kennedy saw the writing on the wall about a liberal future for the Court,” Ilya Somin, a professor of law at George Mason University, said. “If he reached a conservative outcome, it might be quickly reversed when Kagan would be back and there was another Democratic appointee on the Court.”

In the light of the Senate’s continuing refusal to consider the Garland nomination, it seems clear that one of the first acts of the new President will be to nominate a replacement for Scalia. In an unusual move, in May, Donald Trump provided a list of eleven judges whom he would consider nominating to the Court. (He added ten more candidates last week.) The group includes state and federal judges, as well as a senator, Mike Lee, of Utah, all strongly conservative in outlook; many of the names would surely appear on any Republican President’s list of possible nominees. Among them is William Pryor, Jr., a judge on the Eleventh Circuit, who has called Roe v. Wade “the worst abomination in the history of constitutional law.” Carrie Severino, of the Judicial Crisis Network, said of Trump, “I thought his list of judges was excellent. He had obviously consulted with people from the Federalist Society and Heritage Foundation and found people who would be consistent constitutionalists.” The confirmation of any of the judges on Trump’s list would essentially return the Court to where it was before Scalia’s death—with five Republican appointees, including Kennedy, who would sometimes cross sides to join the liberals. If Trump were then to replace Ginsburg or Breyer with a judge from his list, the transformation of the Court would be dramatic. The frustrated hopes of conservatives during the Rehnquist and Roberts years—for restrictions on abortion and affirmative action, for the removal of the barriers between church and state, for the elimination of the last vestiges of political-campaign regulation—would likely be realized.

The calculus would be somewhat more complex for Hillary Clinton. She has declined to say whether she would reappoint Garland, telling reporters earlier this year, “When I am President, I will take stock of where we are and move from there.” A senior Clinton campaign aide told me, “She thinks the Senate should do its job and confirm Garland in 2016. She wants to keep the pressure on the Republicans now, and doesn’t want to give anyone the excuse to put the issue off until next year.” Furthermore, if Clinton wins, she will want to move quickly on all judicial appointments. “The Secretary, as a former senator, is very attuned to the appointments process, and she knows you have to get your ducks in a row and you have to move fast to get your people confirmed,” the aide said. “When it comes to judicial appointments, if she wins, we’ll be looking at where the vacancies are, where the Obama nominees are in the pipeline, and looking to sit down with the Democrats and the Republicans in the Senate to make a plan to get it done as soon as possible.” The political calendar affects the process, too. Even if the Democrats retake the Senate in 2016, the Party’s odds of holding on to it in 2018 are daunting. Clinton may have to put her stamp on the judiciary right away. If the Senate remains in Republican hands, which is a distinct possibility, the nomination of a moderate like Garland might represent Clinton’s only chance to fill Scalia’s seat.

Some liberal advocacy groups, such as Democracy for America, have expressed hope that Clinton would nominate a judge more liberal than Garland. During the primary campaign, Bernie Sanders said that, if elected, he would put forward a more progressive nominee. But conversations with several senators suggest that Democrats in the Senate support a renomination of Garland by a newly inaugurated President Clinton. “What we’ve seen from McConnell and the Republicans is the most irresponsible thing I’ve seen since I’ve been in the Senate,” Patrick Leahy, the Vermont Democrat, said. (Leahy formerly chaired the Judiciary Committee, and is currently the longest-tenured member of the Senate.) “If the President had picked Garland for the seats that went to Sotomayor and Kagan, he would have been confirmed by ninety to ten.”

Leahy would not comment publicly on whether Clinton should renominate Garland, but others were less reticent. In the past, Senate Republicans, including Orrin Hatch, of Utah, who is also a former chair of the Judiciary Committee, had praised Garland. Before the Scalia vacancy, Hatch said that Garland would be a “consensus nominee” and that there was “no question” he would be confirmed. Given these sentiments, many senators appear to believe that Clinton should go for a swift Garland confirmation and use the extra time to try to push more controversial matters through Congress. Richard Blumenthal, the Connecticut Democrat, who once clerked for Justice Harry Blackmun, told me, “If you have a time manager for the President of the United States and you have several significant and politically sensitive issues that you want to get done, you should not expend the time and take the heat of fighting day after day for another nominee when Garland will be on the right side of all the major issues, like choice, right from the start.”

A confirmation of Garland, or any Clinton nominee, might affect future retirements from the Court. Many people expect Ginsburg to retire during a Clinton Presidency. But, if there is a fifth Democratic appointee on the Court, Ginsburg will be the senior member of a likely majority in some important cases; she will thus enjoy the corresponding opportunity to assign the opinions. In more than two decades on the Court, Ginsburg has never assigned an opinion. (Neither has Breyer.) The chance to control the opinion-writing might present a significant disincentive for Ginsburg to retire. “You can imagine that it galled Ginsburg that Kennedy, who was the senior Justice in the Texas abortion case, assigned that opinion to Breyer, instead of her,” Noah Feldman told me. “The assigning power is very meaningful.” Thus, it might be Breyer, who has many non-judicial interests, such as serving on the board that awards the Pritzker Architecture Prize, who retires first. (The retirement plans of Kennedy are unknown. Thomas, who is sixty-eight, has made clear that he enjoys the job less than his colleagues seem to, but he is unlikely to leave a seat to be filled by a Democratic President.)

A liberal majority on the Court would present a particular dilemma for the Chief Justice. Roberts’s voting pattern suggests that he would be a frequent dissenter—which no Chief Justice has ever been. Feldman said, “Roberts might have thirty more years in that job, and he might have it with a liberal majority. Because his only real power is to assign opinions when he is in the majority, he could actually wind up with no power.” At this point, it appears that Sotomayor, the author of a best-selling memoir and a frequent presence on the lecture circuit, has chosen an outsider’s role on the Court, while Kagan is trying to become the internal playmaker, building coalitions that might achieve majorities. “In future years, if Ginsburg and Breyer are replaced by Democratic appointees, Roberts could turn into the Chief Justice in name while Kagan becomes the de-facto Chief Justice,” Feldman said. “But, if Roberts wants to stay the real Chief Justice, he might have to moderate his views and join more often with the liberals. But would he want to do that?”

Liberals on the Court have spent decades in a defensive crouch, trying to fend off challenges to treasured precedents in areas such as abortion rights and affirmative action. But if they were a majority they would have the chance to go after some conservative landmarks. What new crusades might the liberals begin?

Democrats in the political arena have a clear target: the Court’s decision in Citizens United, in 2010. In July, Hillary Clinton released a campaign video in which she said, “Today, I’m announcing that in my first thirty days as President I will propose a constitutional amendment to overturn Citizens United and give the American people, all of us, the chance to reclaim our democracy. I will also appoint Supreme Court Justices who understand that this decision was a disaster for our democracy.” This might sound good to the Democratic base, but overruling Citizens United would probably not accomplish what the politicians imagine it would.

“People use ‘Citizens United’ as shorthand for all the problems of money in politics, but in fact the decision itself had little to do with money in politics, and reversing it would do little or nothing to remove money in politics,” Pamela Karlan, a professor at Stanford Law School who also worked in the Obama Justice Department, told me. Justice Kennedy’s decision for the Court in Citizens United, though now symbolically important, held that the First Amendment prohibited the government from penalizing a nonprofit corporation that was distributing a political film during an election year. The notion that corporations have First Amendment rights, which is central to the decision, has had little to do with the role of money in political campaigns. Subsequent decisions that limited the government’s power to regulate campaign financing also had modest practical impacts. “Google, Ford, and other companies don’t generally support individual candidates. They spend their money on lobbying,” Karlan said. “Citizens United has nothing to do with the huge amount of money, the dark money, that is being spent by rich individuals to influence campaigns and public opinion. In our system, there’s basically nothing you can do to stop the Koch brothers from independent spending in elections. That’s their right under the First Amendment.” Even Clinton’s proposed constitutional amendment (which, like all proposed amendments, would have virtually no chance of adoption) would make little difference. According to Karlan, a more liberal Court would probably allow some state-based experiments in public funding of campaigns, but the Court certainly would not take a leading role in limiting the influence of money in politics.

Moreover, it’s largely up to Congress, not the courts, to take the first steps toward greater regulation of campaigns. “You can erase Citizens United, and nothing will change until Congress decides to regulate the super PACs and political nonprofits,” Heather Gerken, a professor at Yale Law School, said. “Of course, those groups are of great value to many members of Congress, so the chances of Congress passing a law against them are remote.”

A liberal Court would, however, make a difference on the issue of voting rights. In 2013, in Shelby County v. Holder, the five conservatives on the Court gutted the Voting Rights Act, effectively eliminating the provision of the law which allowed the Justice Department to monitor changes in state and local laws to protect the rights of minorities. Many Republican-dominated states responded by imposing photo-identification requirements, limiting early voting and absentee voting, and closing polling places in minority neighborhoods. In the past year or so, federal judges have begun using other provisions of the Voting Rights Act to strike down these changes. In a current North Carolina case out of the Fourth Circuit, a liberal panel voided the state’s newly passed restrictions on voting. The decision was allowed to stand by the Supreme Court in a four-to-four tie. “A liberal majority on the Supreme Court could put the teeth back into the Voting Rights Act,” Karlan said.

The liberal wish list expands rapidly from there—limited only by the imaginations of law professors, advocates, and the Justices themselves. One possibility is that the Court might recognize a constitutional right to counsel in civil cases. (Currently, only criminal defendants are guaranteed legal representation.) In criminal law, the Court might adopt the idea, which Sotomayor has suggested, that the Constitution forbids incarcerating individuals who are too poor to pay fines. Several scholars have proposed a constitutional right to education, which might force increased funding for poor districts, or, even more speculatively, a right to a living wage.

The Court invariably responds to the political priorities of the moment—and to those of the President making the nominations. In the New Deal years, Franklin Roosevelt’s appointees validated many of his aggressive steps to address the crisis of the Great Depression. If elected Democrats succeed in tackling income inequality, judges may follow suit. Joseph Fishkin and Willy Forbath, who teach at the University of Texas Law School, have proposed that the Court enforce what they call “the Constitution of opportunity.” They write, “As structures of opportunity grow more narrow and brittle, and class inequalities mount, our nation is becoming what reformers throughout the nineteenth and early-twentieth century meant when they talked about a society with a ‘moneyed aristocracy’ or a ‘ruling class’—an oligarchy, not a republic.” And it is the duty of the Supreme Court, they assert, to prevent this system from persisting. Of course, the immediate prospects for any such decisions remain remote.

For the first time in decades, there is now a realistic chance that the Supreme Court will become an engine of progressive change rather than an obstacle to it. “Liberals in the academy are now devising constitutional theories with an eye on the composition of the Court,” Justin Driver said. The hopes for a liberal Court will begin—or, just as certainly, end—with the results on Election Day.