Respond to this Article September 2004

Hoover's Court Rides Again

By Cass R. Sunstein

If President Bush is reelected, he may appoint as many as four Supreme Court justices. He is likely to appoint hundreds of judges to the lower courts. What would happen?

Here's one clue. The last quarter-century has seen a determined, self-conscious, and highly-organized effort to reshape the federal judiciary. The effort has been astonishingly successful, producing a radical shift in a little over two decades. As a result of that shift, what was considered conservative in 1980 is now considered moderate; what was then moderate is now liberal; what was then liberal is now absent; and what was then reactionary is now conservative (and entirely mainstream).

Here's another clue. In the last few years, right-wing activists have become far more ambitious. There is a great deal of talk about restoration of the "Constitution in Exile"--the Constitution as it existed in 1932, before President Franklin Delano Roosevelt's New Deal. Under this Constitution, the powers of the national government were sharply limited. The National Labor Relations Act of 1935, not to mention the Civil Rights Act of 1964, would have been impermissible. Under the Constitution in Exile, rights to have recourse against discrimination, and to protection of privacy, were minimal. A far more significant right was freedom of contract, which threw minimum-wage legislation into constitutional doubt. The Supreme Court tends to move slowly, and under a second Bush term, it would not adopt the Constitution of 1932; but it would probably move in that direction.

For many people, the most pressing issue is the fate of Roe v. Wade and women's right to choose. In 1992, the Rehnquist court cut back on the ruling but preserved its core, by a narrow 5-to-4 vote. New Bush appointments might well lead the court to return the issue to the states. More broadly, a newly constituted court would be unsympathetic to any claim that the Constitution protects sexual and reproductive liberty from state intervention.

But if several appointments are made under an extended Bush presidency, the new court would likely do much more. It might strike down most campaign-finance reform. It would probably be inclined to invalidate parts of the Endangered Species Act and the Clean Water Act as beyond Congress' authority. It might well elevate commercial speech to the same status as political speech--thus forbidding controls on commercials by tobacco companies, among others. It would probably limit congressional efforts to protect disabled people, women, and the elderly from various forms of discrimination. More radically, it might interpret the Second Amendment so as to reduce the power of Congress and the states to enact gun-control legislation.

Suppose that there aren't many new appointments to the Supreme Court and that these radical developments don't occur. The consequences of a second Bush term would still be huge, simply because of its effects on the lower courts, where the vast majority of cases are decided. On the courts of appeals, Republican appointees are far more likely to strike down environmental regulations; uphold restrictions on abortion; invalidate campaign finance laws; and reject claims by those complaining of sex discrimination, sexual harassment, and discrimination on the basis of disability. (Notably, there is no difference between Republican and Democratic appointees in criminal cases; the latter aren't "softer on crime.") Where the political parties differ, the votes of federal judges of different parties often differ, too.

These differences aren't only about legal victories and losses. They're about the very meaning of the law, including the Constitution itself. Court of appeals rulings are accompanied by opinions that operate as precedents; these help settle the law for the future. The Americans with Disabilities Act, for example, is highly ambiguous; Republican appointees tend to read it narrowly, as a limited intrusion into the marketplace, whereas Democratic appointees tend to read it as providing broader protection for disabled people. So, too, with laws protecting the environment. These can be interpreted narrowly or broadly, and their meaning is effectively determined through judicial interpretation. Judges aren't mere ideologues; they follow the law. But in cases of reasonable doubt, the political party of the appointing president makes all the difference. President Reagan was able to produce a large-scale shift in understanding of the law, simply through his appointments; President Bush may well receive a chance to do the same.

This point actually understates the matter. Republican appointees tend to be conservative in their voting patterns. But they become far more conservative, and far more extreme, when they are sitting on a three-member court that consists only of Republican appointees. Here's one example: Republican appointees vote in favor of industry challenges to environmental regulations about half the time--but sitting only with other Republicans, they vote in favor of such challenges about three-quarters of the time!

Democratic appointees are greatly affected by sitting with Republican appointees. When Democratic appointees serve with two Republican appointees on three-judge panels, they show quite conservative voting patterns--about the same, remarkably enough, as the overall patterns of Republican appointees.

The upshot is that if President Bush has four more years, he will be able to ensure that Democratic appointees usually serve with two Republicans--and that there will be a large number of all-Republican panels. And for that very reason, he will be able to produce another massive shift in the federal judiciary. The Constitution in Exile--Herbert Hoover's Constitution--isn't likely to be restored; but don't be surprised if you see significant movement in its direction.

Cass R. Sunstein is a professor at the University of Chicago and author of The Second Bill of Rights.


Mission   Masthead   Features Archive    Writers Guidelines   
Feedback   Customer Service    Subscribe Online    Make A Donation

This site and all contents within are Copyright © 2006
The Washington Monthly 1319 F Street N.W. #710
Washington DC. 20004.
Comments or questions ... please email editors by clicking here