Linda Hirshman is the author of “Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.”
Nothing separated the odd couple of the Supreme Court — the late Justice Antonin Scalia and his best buddy, Justice Ruth Bader Ginsburg — more than their visions of the Constitution they both loved. Scalia saw the Constitution as a “dead” document, limited to the meaning of the original words at the moment the ink was dry, a moment when white, propertied men ruled. Ginsburg’s Constitution, by contrast, is the expansive charter of an evolving society. She celebrates “the extension (through amendment, judicial interpretation, and practice) of constitutional rights and protections to once ignored or excluded people: to humans who were once held in bondage, to men without property, to the original inhabitants of the land that became the United States, and to women.”
While Scalia’s originalism certainly has its disciples among conservatives, with his death, Ginsburg’s vision of a living Constitution becomes more likely to prevail. President Obama (or his successor) has a chance to appoint at least one more liberal to the Supreme Court. That would give the court a liberal majority for the first time since 1971. It would allow the court to resume the progressive push — on issues including school desegregation, reproductive rights, organized labor and voting rights — that stalled almost a half-century ago. It would enable a revival of a dramatically different role for the court: as an institution that drives social change instead of halting it.
Before President Richard Nixon’s four conservative appointments abruptly tilted the court to the right, the country was in the middle of a social revolution, or what we now call the Sixties. Relations of race, gender and, less obviously, class were mutating at warp speed. The federal courts, and the Supreme Court in particular, were at the heart of the transformations.
The high court issued a series of decisions enshrining the principle of “one person, one vote.” Unevenly apportioned districts had enabled white voters in sparsely populated rural areas to pick most of the people in state legislatures, while minorities and people concentrated in cities and suburbs got little say. The court ordered that legislative districts had to be roughly equal in population. Everything, from policy agendas to the allotment of pork, changed.
School desegregation was also a live issue. Litigants asked the courts to address the educational impact of housing segregation by integrating city school systems with their mostly white suburban counterparts. Other advocates sought a constitutional order compelling states to fund all their public schools equally, rather than using a property-tax-based system that left poor and minority systems wildly underfunded. If schools remained separate, at least they would be equal. In both sets of cases, litigants were winning in lower courts. Supreme Court action seemed promising.
Labor was another big issue. In 1969, the Supreme Court approved a new extraordinary remedy for labor unions, compelling an employer to recognize a union on the basis of cards signed by a majority of employees and finding that an employer’s refusal to do so had been a blatant play for time with the effect of rendering the union vulnerable. After the Supreme Court ruled, unions began to inundate the National Labor Relations Board, and the courts of appeals that supervise it, with requests for orders to bargain.
And then there were issues related to women’s rights. In 1971, in the last days before the conservative court takeover, the court ruled in Reed v. Reed that the equal protection clause applies to sex discrimination. Soon afterward, women’s advocates asked the courts to order that distinguishing between pregnancy-related disabilities and other disabilities is sex discrimination. Formal equality was great, they thought, but the real social change would come when the single largest factor making women’s lives harder ceased to be a burden women must bear alone. A district court agreed.
Then the music stopped. Nixon had campaigned against the “activist” decisions of the Warren court and vowed to replace liberal justices with “strict constructionists,” an early version of originalists. He got to do that four times, appointing Warren Burger in 1969, Harry Blackmun in 1970, and Lewis Powell and William Rehnquist in 1971. (Rehnquist replaced John Marshall Harlan II, who was a Republican appointee but took liberal positions on race and sex.) When the court convened in 1972, conservatives were in the majority. And the Nixon justices set about blocking avenues of inclusiveness one by one.
In 1973, the Supreme Court reversed a lower-court order that had compelled Texas to fund its school districts — the poor Hispanic and African American districts and the richer, mostly white districts — equally. The vote in San Antonio Independent School District v. Rodriguez was 5 to 4 . A year later, the same Republican-appointed majority stopped the courts from extending school desegregation into mostly white suburbs. In both cases, the rulings emphasized the value of local control of schools. As a result, public schools are more segregated today than they were in 1970, and there are serious questions about the quality of the education provided in poorer districts.
Also in 1973, the court famously protected abortion rights in Roe v. Wade. But by grounding the decision in privacy rather than equality principles, the court exposed Roe to pushback. The following year, the court went further in decoupling pregnancy and women’s equality. Justice Byron White, a Democratic appointee who often voted against women’s claims, joined five Republican appointees to rule that pregnancy discrimination is not sex discrimination. The opinion had a short-lived impact on the immediate question: Ginsburg, then director of the ACLU’s Women’s Rights Project, successfully lobbied Congress to pass the Pregnancy Discrimination Act in 1978. Last year, the court applied that law to help protect a UPS worker who was denied accommodation while pregnant.
But the court’s insistence on addressing abortion and pregnancy separately from women’s equality has had monumental consequences for abortion rights. In 1980, four Republican appointees plus White upheld the Hyde Amendment, cutting abortion coverage out of Medicaid. Since the Supreme Court’s decision in Casey v. Planned Parenthood in 1992, the standard of “undue burden” has replaced the protective language of Roe v. Wade and allowed an almost unlimited array of restrictions on abortion to pass muster.
For labor organizing, court inaction has been more damaging than any particular judicial action. Lower courts have refused to enforce orders to bargain seemingly authorized by the court’s 1969 decision. And the Supreme Court has refused to chastise them for it, helping to propel labor’s downward spiral, which may now be too far along to reverse. An additional blow seemed imminent last month when the court heard oral arguments in a case involving California teachers who claim that their free speech rights are violated when they are forced to pay union dues. As The Washington Post’s Robert Barnes reported, “The court’s conservatives appeared ready to junk a decades-old precedent.” With Scalia’s death, the outcome of the case is uncertain.
Voting rights, for a time, fared relatively well under the conservative-majority court. It helped that the passage of the Voting Rights Act in 1965 put a statute and the Justice Department on the side of electoral equality. But a counter-revolution has sought to strip the act of its power. The Supreme Court’s 2013 decision in Shelby County v. Holder nullified the law’s enforcement formula. And in December, the court revisited the meaning of “one person, one vote” in a case that questions whether all residents or just eligible voters should be counted when apportioning voting districts. The decision in that case, Evenwel v. Abbott, threatens to once again transfer political power from dense and diverse urban areas to sparsely populated and predominantly white rural ones.
Now, with the prospect of the court shifting once again, liberals are rightly rejoicing over the preempted conservative rulings. Without the court as a roadblock, President Obama’s liberal initiatives on emissions and immigration are likely to move the country in a new direction. There’s hope for a reversal of several 5 to 4 precedents, including Citizens United, which many liberals describe as the worst decision of the late conservative period.
A liberal-majority court, however, guided by Ginsburg’s vision of increasing inclusiveness, could be even more transformative.
It could affirm that pregnancy, including abortion, is indeed a sex discrimination issue. As such, any restriction on abortion rights should have to meet the standard of “exceedingly persuasive justification” set forth in Ginsburg’s landmark sex discrimination case, United States v. Virginia , not the forgiving low bar of “undue burden” on reproductive decisions. Under a liberal Supreme Court, it’s hard to imagine how a state could make an “exceedingly persuasive” argument for subjecting women to extended waiting periods or scientifically fanciful discouragement lectures before getting an abortion.
A liberal court, picking up where the court left off in the early ’70s, could affirm that racial inclusiveness and equality are more pressing goals than local control of education. It could help remedy the effects of residential segregation and racial gaps in wealth by supporting regional school placements and equal-funding schemes.
A liberal court could resuscitate the orphaned 1969 decision on the remedies for union-busting, adding, for example, real damages for employees who are illegally fired for organizing. A liberal court could also stop businesses from using the Federal Arbitration Act to force employees and consumers into the hostile world of private arbitration. Ginsburg has been graphic on the injustice of the past decade of 5-to-4 decisions cutting disempowered players out of the last collective remedy they have: class-action litigation.
Protecting electoral representation is perhaps the most promising prospect of a revived liberal jurisprudence. The court could, and surely would, reject the claim that only potential voters should count when apportioning political representation. Where geography is a rough stand-in for common interests, counting nonvoters advances the cause of democratic governance.
A liberal court also would watch for efforts by one party to pack the other side’s voters into the fewest number of districts. The court had been scheduled to hear arguments shortly on a Virginia districting scheme that put almost all of the state’s black voters into one district (with predictable partisan results). Even before Scalia’s death, the court seemed inclined to disallow it. But racial gerrymandering is always hard to defend. A liberal court should be equally concerned with partisan gerrymandering, which similarly distorts the wishes of voters.
And finally the court could go back to sharpening — instead of pulling — the teeth of the Voting Rights Act. Ploys such as requiring elaborate identification and limiting access to registration would be treated as the exclusionary devices that they are.
Some readers may question whether Ginsburg’s vision, or that of a new liberal justice, would include a more revolutionary role for the court. After all, Ginsburg is often called a “judicial minimalist,” and she has criticized Roe v. Wade for going “too far, too fast.” Obama, meanwhile, has said that while he admires what the Warren court did to “break that logjam” on segregation, he “would be troubled if you had that same kind of activism in circumstances today.”
But Ginsburg’s criticism of Roe is not about goals, it’s about strategy. She believes that incremental court decisions inoculate themselves against controversy better than ones that unnecessarily leapfrog the legislative process. Her commitment to preserving the right to abortion, and to the larger project of women’s equality, is incontestable.
As far as Obama, if sincere, his willingness to consign the unfinished business of the Warren court to the dustbin of history would be conservatism’s ultimate victory. But he made that comment in the midst of his 2008 presidential bid and may have been strategic in his answer. Indeed, just a few sentences later, he concluded, “The kind of justice that I’m looking for. . . has a sense of what’s happening in the real world and recognizes that one of the roles of the courts is to protect people who don’t have a voice .” The two justices he has appointed certainly appreciate that role.
Still, it’s a testament to conservative legal dominance over the past 45 years that a liberal African American constitutional law professor feels the need to qualify the accomplishments of the Warren court. Conservatives have not only dominated the outcomes of cases since the early ’70s, they’ve changed the way people think and speak about the federal courts.
With a liberal majority, the Supreme Court could finally redeem itself as a hero in a story of inclusion.