January/ February 2012 The Courts

The conservative takeover will be complete.

By Dahlia Lithwick

Imagine a Democratic presidential nominee running on promises to reshape, remake, make over, hog-tie, or even just refinish the federal bench. It doesn’t happen. And so, even though the most conservative Supreme Court in decades sits poised to decide cases ranging from the constitutionality of President Obama’s health care legislation to the future of affirmative action in schools, the rights to gay marriage, and the fate of the voting rights act, Republicans portray both the Supreme Court and the lower courts as a collective of lefty hippies. And Democrats mainly just look at their fingernails. If you care about the future of abortion rights, stem cell research, worker protections, the death penalty, environmental regulation, torture, presidential power, warrantless surveillance, or any number of other issues, it’s worth recalling that the last stop on the answer to each of those matters will probably be before someone in a black robe. Republicans have understood that for decades now, and that’s why the federal bench—including the Supreme Court—is almost unrecognizable to Democrats today.

[Return to What if Obama Loses: Imagining the consequences of a GOP victory]

Dahlia Lithwick is a senior editor at Slate, where she writes the "Supreme Court Dispatches" and "Jurisprudence" columns.


  • win on January 15, 2012 11:29 AM:

    As much as the article intends to provoke fear of a Supreme Court with a majority of Justices who support the original meaning theory, the article fails. Originalists simply believe that the original meaning of the Constitution should be considered in reaching decisions. The great majority of originalists believe as part of that Justices should ask the question “How would a reasonable person living when the Constitution or amendment was passed, have interpreted the text in question?”
    The idea stems from the concept that the Constitution is written by the people and for the people therefore people must be able to understand it's meaning.

    None of the concepts in originalism are dangerous or harmful as the article promotes. Rather the concepts uphold the underlying concept of the reasoning behind the foundation of the United States – that the authority of the government comes from the people and without that the authority the government is illegitimate.
    The Constitution is meant to protect the rights of the people, so one can only wonder what good it would do if the people were able to understand it, but would have to have a lawyer to comprehend the meaning.

    Perhaps we should cheer that conservatives apparently have belief in the people, and instead consider the ideological differences between the two parties as the cause of disagreements.

  • David on January 15, 2012 3:47 PM:

    The attempt by this article to paint President Obama's picks as less ideologically extreme fails in the face of the embarrassing selection of Justice Sotomajor, perhaps the most unqualified pick since Clarence Thomas. Just look at her extreme (and ludicrous) work in the New Haven firefighter case.

  • John Herbison on January 15, 2012 5:20 PM:

    The great majority of originalists believe as part of that Justices should ask the question �How would a reasonable person living when the Constitution or amendment was passed, have interpreted the text in question?�

    Let's see now. How would that work in practice? Take, for example, Bolling v. Sharpe, an opinion issued on the same day in 1954 as the more famous Brown v. Board of Education of Topeka. In Brown, the Court held that a system of racially segregated public schools violates the Equal Protection guaranty of the Fourteenth Amendment. In Bolling, the Court reasoned that segregated public schools in the District of Columbia, a federal enclave which is not a State subject to the Fourteenth Amendment Equal Protection clause, violates the Due Process Clause of the Fifth Amendment, which the Court construed to guarantee equal protection vis-a-vis the federal government coextensive with the Fourteenth Amendment guaranty.

    The Fifth Amendment was ratified in 1791. The drafters there likely had no idea that they were prohibiting de jure segregation of the races.

    Suppose Chief Justice Roberts, in his capacity as administrative head of the judicial branch of government, decided, on originalist grounds, that Bolling v. Sharpe was wrongly decided. Should he then order that some drinking fountains in the Supreme Court building be reserved for white people and others reserved for coloreds?

  • FoonTheElder on January 17, 2012 10:58 AM:

    The great 'originalists' are nothing but phonies. When did the founders state that corporations are people, property (money) equals free speech and that the Supreme Court decides presidential elections.

    This court does nothing more than decide the result they want to see and back into the legal logic.

  • POed Lib on January 18, 2012 10:27 AM:

    Most of the "originalists" are nothing but corpowhores who believe that corporations are people, and people who deserve a much better treatment than living breathing people. The extreme travesty of Bush v Gore reveals the bald-faced, total lie of the notion of "originalism". If there is one thing that the constitution stands for, it is that the powers should be separate, and when the SC picked Bush, this was forever destroyed. Citizens United is ANOTHER horrible corpowhore decision.

  • Karen Green on January 20, 2012 1:21 PM:

    This may seem ridiculous but I am not sure the original writers of the Constitution were originalists-they did allow for change by the amendment process.

  • serena1313 on January 21, 2012 6:04 AM:

    While presidents come & go, their legacies live on through their appointees to the courts at the federal level & the Supreme Court.

    I was alarmed when Bush began appointing judges at breakneck speed. When Bush nominated John Roberts & Alito to the Supreme Court I was disappointed the Democrats did not put up more of a fight. Thankfully they did successfully block Robert Bork.

    I do not know if Newt Gingrich would carry through on his pledge to remove judges and justices from the bench if he decides they are not following the Constitution, but I would not put anything past him. Mitt Romney may not sound as radical, however, with Robert Bork on his judiciary advisory committee Romney might be just as radical as Newt. But who knows given his multifarious positions. Regardless if it is performance art or not, just the mere threat, pledge or promise ought to give everyone pause.

    Another troubling aspect is the influence of money in our courts. It is one thing for Clarence Thomas, Antonin Alito & Scalia to have been guest speakers and or invited as guests at several events hosted by the Koch brothers it is quite another to be the recipient of gifts worth tens of thousands of dollars. While Iam not aware of Alito or Scalia receiving extravagant gifts, Clarence Thomas & his wife certainly have.

    Clarence Thomas' wife started her own lobbying company with a $500,000.00 gift from one Thomas' close friends, Dallas real estate magnate & GOP financier Harlan Crow. Crow also gave Justice Thomas a Bible valued at $19,000.00 (10-years ago), provided travel on his private jets, financed a multimillion-dollar deal for a museum at the cannery where Thomas’ mother worked among other things. Crow's companies have been involved in the appellate courts, but he served on the board of the American Enterprise Institute (AEI). As the trustee, Crow gave Thomas a bust of Abraham Lincoln worth $15,000. Instead of recusing himself, Thomas voted in favour of all 3 cases the AEI litigated before the Court. No Thomas is not required by law to recuse himself, but it is the appearance of impropriety on his part that is troubling.

    As money & powerful interests creep into every aspect of our government, our elections and our justice system, all the progress we've fought for & won the past 50 years or more is being set back.

    Today accessing the courts is a feat in itself. Redressing our grievances in a court of law is hardly worth the effort anymore. The expense alone is way beyond most people's means & by the time their case finally gets to court, it is either thrown-out or decided against. After all corporations are people. Money is free speech. And we, the people, are just a side-note or nuisance.

    With more conservative judges & Justices ultimately things will only get worse. That is not hyperbole; it is already occurring. Even the lest observant can attest to that.

    This is a discussion long overdue. Thank You Dahlia for starting it.

  • Tom on January 22, 2012 12:01 PM:

    I honestly believe the conservatives, particularly in the south, would love a new Civil War. So, to paraphrase one of their own -- "Bring it on."

  • Steve on January 25, 2012 5:07 PM:

    Tom, just let them go, I think I can survive without South Carolina, and Texas.

  • tpane on January 27, 2012 7:36 PM:

    Democrat/Socialists seem to take great offense at corporations being considered "people." In my mind, corporations are run by - sure enough - real people and, more importantly, if they pay a (the Democrat's favorite - hidden) tax, and they do, they must be productive people!!

  • Lovelalola on January 28, 2012 11:05 PM:

    Oh, scary! If I don't vote for Obama they are coming for my uterus and will destroy the green planet! Geez, how many idiots do you think buy this crap anymore. Defend your own abortions; I never needed one.

  • KenM13 on January 29, 2012 2:29 PM:

    "In my mind, corporations are run by - sure enough - real people"

    People who already have an equal voice in politics and create a corporate person to give themselves an unequal advantage.

  • susan on January 31, 2012 10:04 AM:

    You are exactly correct, win. Thank you for that. There is absolutely nothing dangerous about originalism. With originalism, the Constitution is effective at curtailing the growth and scope of the Federal government. On the otherhand, there is something very dangerous about individuals being arbitrarily "determined" to have the authority to decide what the law "should be." No thanks. The day the final nail is put in the coffin of the "Living Constitution" theory is the day that federal tyranny will be once again put at bay in this nation.

  • Wally on February 10, 2012 8:08 PM:

    The "founders" - whoever exactly they were - were not "originalists." They never stated that the Constituion could not be interpreted by courts and indeed they drafted a Constitution giving such ample authority to courts to do just that. Why? Because because relying on legislative intent - unless crystal clear - to decide cases allows for a system whereby elites have discretion to interpret the law any way they want.

    Originalism is a construct invented by proffered by mainly white wealthy southerners in the mid 19th century to keep the oligarchical slavery system intact and resuscitated in the late 20th to return the country to well, the time of slavery. To a time where wealthy oligarchs could buy the result from 3 branches of government without interference from legal challenge by plebians, sharecroppers, crackers, slaves and shopkeepers referring to laws protecting them. What originalism really is, is the elimination of a transparent system of rule of law that ensures everyone has is equal before the law.

  • al-Ameda on February 20, 2012 7:51 PM:

    Fortunately, it appears that Obama will get 2 more chances, and following that, a Hillary Clinton Administration will get 2 more chances.

    If progressives are really fortunate, Clarence Thomas will be forced to resign, for transgressions that are far more serious than those that forced Abe Fortas off the court over 40 years ago.

  • Saving Grace on March 10, 2012 9:07 PM:

    Again, the constant fear that conservatives will overturn abortion. It's always about abortion, isn't it? Planned Parenthood and NOW sure have some power within the DNC, don't they? Can we ever stop with this premise that Republicans just want to hurt women? It simply isn't true. To make the charge that Thomas is evil because of Anita Hills claim...come on, her claim is about as true as Flukes. A manufactured dog and pony show by the protectors of abortion. geez...it's hard to watch the left do this. People just aren't buying it anymore.

  • Bernard on March 11, 2012 10:39 PM:

    Courts for the application of Justice? what a weird concept or government for the People, oh please!

    Courts are there for the Conservatives to do what they choose. that's the way it's always been. Lighting a candle in the darkness is not the conservative way. Using a candel costs way too much/not conserving that candle/ to fight the darkness. it is much more efficient to curse and blame the "other." and more importantly the sheep never quesiton what Big Daddy says.

  • Tom on July 31, 2012 3:43 PM:

    I'd give anything for a clear conservative majority in the Supreme Court. Then we can have confidence that they will make the right decisions.