5.5: Chapter 35- The Supreme Court as an Ideological Actor

“In class background and political proclivity, the justices (and federal judges at other levels) have more commonly identified with the landed interests than with the landless, the slave owners rather than the slaves, the industrialists rather than the workers, the exponents of Herbert Spencer rather than of Karl Marx.”

–Michael Parenti (1)

It is clear from previous chapters that the Supreme Court—indeed, the federal judiciary broadly—is a political actor and that we are currently in a period in which the composition of the federal courts is a highly politicized issue. There is strong evidence, for example, that Court votes have increasingly split between justices appointed by Republican versus Democratic presidents. (2) In this chapter, we want to see if we can make some generalizations about the Supreme Court as an ideological actor. Litigants who come before the Court represent particular interests, and it would be helpful for us to know which interests tend to win before the Court more often than other interests. Those patterns reveal the Court’s fairly clear ideological tenor illustrated by Parenti’s quote above, although we can certainly identify exceptions to the rule.

Ideological Terminology

As this might be your first, but hopefully not only, political science course, you might be confused by the terms used to describe political ideologies. There’s a good reason for that: they’re confusing! American ideologies are, as a group of legal scholars wrote, “imperfectly overlapping.” (3) Nevertheless, we can try to group ideological terminology in somewhat coherent ways. The terms associated with the two predominant ideologies in America group together like this:

The terms conservatism, neo-liberalism, classical liberalism, and cultural conservatism all hang together even though those group’s adherents don’t necessarily agree with each other. For example, a cultural conservative might want to ban all forms of what they would call pornography, but neo-liberals don’t get up in the morning wanting to ban pornography. And classical liberals would positively recoil at a government powerful enough to dictate what materials adults could access. We should also keep in mind that the impulses of cultural conservatism, neo-liberalism, and classical liberalism can coexist inside the head of an individual conservative. Humans are complicated. Nevertheless, for our purposes here, we are going to refer to the people in this entire category as conservatives and lump all of these impulses together under the conservatism label.

The terms liberalism, progressivism, social-welfare liberalism, and democratic-socialism all hang together even though those group’s adherents don’t necessarily agree with each other. For example, there is a fairly strong wing of liberals who have no interest in promoting the kind of single-payer healthcare system that really gets progressives and democratic-socialists excited. In fact, many on the left side of this grouping would say that what they call corporate or Wall Street liberals are really just conservatives. Just as with conservatism, individuals on the left side of the American political spectrum can have liberal, progressive, and democratic-socialist impulses coexisting in their brains at the same time. For our purposes here, we are going to refer to people in this entire category as progressives and the ideology as progressivism. We should be clear, though, that this large tent of people includes democratic socialists but does not include true socialists whose aim is to dismantle capitalism.

Conservatism and Progressivism

If there is one thing that unites conservatives, it is defending existing privilege and power. Hierarchy—or a “chain of subordination,” as Edmund Burke famously put it when criticizing the French Revolution—is very important to conservatives. Conservative defenses of monarchy gave way in the wake of the French Revolution to a more principled set of arguments that adapted to the particular set of privileges and power that conservatives sought to defend. Conservatives believe that some people are fit to rule others in the political sphere as well as private spheres of families, farms, factories, and offices. Political scientist Corey Robin nicely summarizes conservatism’s primary aim: “Conservatism is the theoretical voice of . . . animus against the agency of the subordinate classes. It provides the most consistent and profound argument as to why the lower orders should not be allowed to exercise their independent will, why they should not be allowed to govern themselves or the polity. Submission is their first duty, and agency the prerogative of the elite.” (4) What does this mean in practice? Conservatives opposed granting women and minorities the right to vote; they opposed civil rights legislation designed to protect people from discrimination; they oppose workers’ ability to organize; they oppose women’s ability to control their bodies; they oppose corporation and bank regulations; they oppose national health insurance that would empower people vis a vis their employers; they oppose campaign finance regulations and disclosure laws; they support expanding police power in poor neighborhoods while limiting it for white-collar criminals. As the demands of progressive movements have changed over time, conservatism has risen to defend the prerogatives of those who stood to lose power or privilege.

If there is one thing that unites progressives, it is the belief in using government power to help people live full lives, solve social problems, and counter the power of business interests. In the twentieth and twenty-first centuries, progressives have made the case that the traditional political rights of voting, freedom from unreasonable searches and seizures, free speech, etc. only guarantee negative freedom—freedom from government intrusion—and that they ought to be supplemented by positive social and economic rights. If we can guarantee people freedom of speech, can’t we also guarantee them health care, adequate housing, and a living wage? In 1945, Franklin Roosevelt gave his last state of the union speech in which he called for a Second Bill of Rights that would have guaranteed employment with a living wage, adequate housing, medical care, social security, and a good education. Some of those provisions have been enacted at either the federal or state level, but others have not. In addition to the Social Security system, the United States added programs such as Medicare, Medicaid, subsidized school meals, taxpayer-financed public education, and a variety of social welfare programs aimed at providing people a safety net. By the latter half of the nineteenth century, it became increasingly clear to many progressives that most people had less to fear from government tyranny than they did from corporate predation. Large corporations are able to control peoples’ social and economic lives to a great extent. Progressive critics argue that corporations distort democracy in many ways. Finally, progressives have been at the forefront of ensuring equal rights for people regardless of race, sex, national origin, and religion.

The Historical Behavior of the Supreme Court

Given this quick background in political ideologies, what conclusions can we reach about the Supreme Court as an ideological actor? Perhaps the best thing for us to do is to review the Court’s actions over the course of American history with an eye toward the ideological distinctions made above. The Supreme Court’s history shows that it fits firmly in the conservative ideological tradition, although it has at times acted progressively on issues such as civil rights and the rights of the accused. As journalist and Harvard Law School graduate Adam Cohen states, “The conservative majority has been on a campaign for the past 50 years to shift the law in ways that lift up businesses and wealthy individuals and push down the middle class and the poor, and it has had great success.” (5)

Let’s look at three specific areas:

The Supreme Court as Enforcer of Corporate Hegemony

Of, By, and For the Corporations

The Court reveals its ideological character most strongly in its friendship to corporate America at the expense of working people. Even though corporations are not mentioned in the Constitution, the Court has worked hard to ensure that corporate prerogatives are enshrined in the law of the land and woven throughout the very core of daily life. States began chartering corporations in the late eighteenth and early nineteenth centuries. As early as 1819, the Court recognized that a corporate charter—in this case one granted by the King of England before there was a United States—constituted a contract that states could not revoke or even change. (6) After the United States adopted the Fourteenth Amendment in 1868 with its protections for the life, liberty, property, due process and equal protection of the laws for “persons,” the Court moved quickly to break down the long-established distinction between artificial persons—i.e., corporations and other organizations allowed to exist by state charter—and natural persons—actual living, breathing human beings. The railroad companies led the charge and the Court complied: even before argument had been heard, Chief Justice Waite announced that “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.” (7) In fact, there was no legal precedent for erasing the distinction between artificial and natural persons, and it was clear from the congressional deliberations over the Fourteenth Amendment that senators and representatives were not thinking about corporations when they wrote it. Retired Montana state supreme court justice James Nelson nicely summarized the constitutional case against corporate personhood:

“If you read the original federal Constitution and Bill of Rights, you will find there are no rights given to any non-human legal entity–corporations, associations, partnerships, for example. Not a single, solitary right. Indeed, the Constitution and Bill of Rights do not even contain the word corporation. And with good reason. The Framers did not trust big business.” (8)

Thus unleashed, corporations were able to use federal and state courts to thwart democratic control, as courts struck down child labor laws, maximum hours laws, and a bevy of regulations designed to make working life bearable. For instance, the Supreme Court has ruled several times that corporate rights under the Fourth Amendment prevent authorities from random and unannounced inspections. This makes it rather difficult to enforce environmental, safety, or health regulations. (9) Similarly, corporate commercial speech has become extremely difficult to regulate because of the way the Supreme Court has interpreted the First Amendment in favor of corporations. The Court, for example, forbade conservation laws that banned electric utilities from promoting electricity use and struck down laws requiring that advertised health claims be backed up by scientific evidence. (10) The Court ruled in the Citizens United case (2010) that the First Amendment means that corporations can spend unlimited amounts of money on “electioneering communication.” According to Senator Sheldon Whitehouse, “After Citizens United, if you are in America’s corporate elite, you have been given a super-powered voice and pocketbook to put to work in politics, on top of your own,” a power that the Founders never imagined nor would have wanted. (11)

The Court ruled in Americans for Prosperity v. Bonta (2021) that the First Amendment’s freedom of association forbids states from requiring the disclosure of wealthy donors to non-profit organizations that influence politics. In West Virginia v. Environmental Protection Agency (2022), the Court went out of its way in a case that had become moot to limit the EPA’s ability to regulate the energy sector. The Hobby Lobby case (2014) allowed for-profit corporations the right to exercise religious freedoms that are protected by the First Amendment. Enabled by an earlier hijacking of the Fourteenth Amendment’s protections for “persons,” Harvard Law School professor John Coates, IV, comments in a broader historical and political context on the Court using the First Amendment to empower corporations:

“The corporate takeover of the First Amendment represents a pure redistribution of power over law with no efficiency gain. . . That power is taken from ordinary individuals with identities and interests as voters, owners and employees, and transferred to corporate bureaucrats pursuing narrowly framed goals with other people’s money. This is as radical a break from Anglo-American business and legal traditions as one could find in U.S. history.” (12)

Overall, how well do business interests fare before the Supreme Court? Beginning in the late 1960s, businesses became more aggressive about pushing cases to the Supreme Court. Republican appointed justices are more pro-business than Democratic appointees, but even Democratic appointees have become more pro-business over time. According to one study, the proportion of pro-business Supreme Court decisions roughly tripled from the late 1960s to the early 2000s. According to another study, the Court ruled in favor of the U.S. Chamber of Commerce’s position 43 percent of the time from 1981-86, 56 percent of the time from 1986-2006, and 70 percent of the time from 2006-22.(13) According to Empirical SCOTUS, over several years the Court ruled in a pro-business fashion between 57 percent and 81 percent of the time. (14) In other words, since the early 1980’s, business interests have gone from having roughly a 50/50 shot at winning at the Supreme Court to now being the odds-on favorite to prevail.

Before we leave the issue of the Court’s privileging corporations in the American social hierarchy, we should pause to note the Court’s antipathy to workers’ interests. In Lochner v. New York (1906), the Court struck down state laws limiting the hours that employers could force employees to work, saying it was a violation of the freedom of contract. As we noted before, the Court came around after Roosevelt’s court-packing plan to endorse many regulations. However, in the modern era, justices have been on a spree when it comes to privileging corporations over their workers. They undercut public service unions in 2018 by forbidding them from making all employees pay fees to defray the costs of negotiating agreements, even if all the employees are covered by those wage and working condition agreements. (15)

The Supreme Court and Democratic Governance

Standing in Line to Vote

Robert Kaplan, the former legal affairs editor for Newsweek, argues forcefully that America’s continual deference to “nine unaccountable judges” constitutes “a disdain for democracy.” (16) Kaplan is correct, even though the Court occasionally acts to uphold democratic principles. For instance, the Court famously struck down legislative districts that were grossly unequal in population as a violation of the one-man, one-vote principle. (17) If you live in a district with 30,000 voters, and I live in one with 100,000 voters, your vote for representative is more determinative of who wins than is mine, and your representative has fewer constituents to represent. To its credit, the Court disallowed such disparities. The Court also applied that principle when striking down conservative efforts to count only eligible voters for the purposes of drawing legislative boundaries. The Constitution is clear that legislative districts are based on the number of persons, not eligible voters. (18)

Still, the Court has acted in remarkably undemocratic ways at key moments in American history. The Court has, in the words of constitutional scholar Erwin Chemerinsky, “enforce[ed] the Constitution against the will of the majority” when it should be protecting “the rights of minorities who cannot rely on the political process and. . .uphold[ing] the Constitution in the face of any repressive desires of political majorities.” The Court has, says Chemerinsky, “often failed where and when it has been most needed.” (19) Let’s quickly review four prominent examples:

Partisan Gerrymandering—We’ll talk in more detail about gerrymandering in a later section on electoral politics. Basically, it refers to willfully drawing election district boundaries to achieve a political end. The Court has ruled that drawing such boundaries to disadvantage a particular race is unconstitutional because it violates the one-man, one-vote principle in a way that exhibits racial animus. (20) But there are other forms of gerrymandering. Once geo-mapping and big data technology became easily available to state parties and legislators, they used these technologies to engage in partisan gerrymandering, which is when the majority party in a state draws legislative districts to make it difficult for the opposition party to win seats in the state legislature or U.S. House of Representatives. As we’ll see later, such practices are obviously unfair assaults on the very nature of American democracy. However, the conservative majority on the Supreme Court declined to do anything about partisan gerrymandering, even when the results effectively disenfranchise millions of American voters. The majority said the issue was a “political question” for state legislatures to resolve. (21) Of course, it is primarily majority parties in state legislatures that are causing the problem, so the Court’s decision amounts to giving a pass to continue this particular anti-democratic practice.

The 2000 Presidential Election—Bush v. Gore (2000) illustrates the Court’s animus toward democracy and its willingness to set aside its own precedents when given a chance to hand the presidency to their preferred Republican candidate who was lagging behind in both the popular and electoral college vote. On election night, it was clear that Democrat Al Gore was ahead of Republican George W. Bush in the national popular vote as well as the electoral college vote. In Florida, however, Bush was ahead by .061 of 1 percent in the initial vote tally. As per state law, Gore asked for a recount. Florida’s Secretary of State, Katherine Harris, who was also Bush’s state campaign manager, abused her office by trying to shut down the recount. The Florida Supreme Court ordered the recount to continue. The U.S. Supreme Court, at Bush’s request, stepped into the case while Harris refused to extend deadlines for recounts, and the Florida Elections Canvassing Commission certified Bush as the winner with 537 more votes than Gore. On Friday, December 8, the Florida Supreme Court again ruled in Gore’s favor and ordered Florida’s Supervisor of Elections and the Canvassing Board to continue with manual vote recounts.

The U.S. Supreme Court heard arguments in Bush v. Gore on December 7 and then again on December 11. In a 5-4 decision, the U.S. Supreme Court decided along ideological lines to overturn the Florida Supreme Court’s actions. Specifically, the Court said that the Florida Supreme Court’s decision failed to specify how all counties should do the recount and therefore violated the Fourteenth Amendment’s equal protection clause, even though the Florida Supreme Court had designated a single judge to hear all disputes, thus guaranteeing a single standard. Even worse, the majority opinion specifically said that the U.S. Supreme Court’s particular interpretation of the equal protection clause was a one-off and should not be precedent setting. As the dissenting justices mentioned, the solution to the Court’s ruling was simply to remand the case back to the Florida State Supreme Court and ask it to establish clear standards for the recount. Instead, the conservatives on the U.S. Supreme Court stopped the recount altogether, thus handing a 537 vote margin and the Florida victory to Bush, which allowed him to squeak by in the electoral college by one vote.

Constitutional scholar Erwin Chemerinsky, who does not believe the five conservative justices acted in a partisan way, nevertheless puts Bush v Gore “among the worst decisions in history.” The Court stepped into a case that “it had no business hearing and deciding.” For one thing, there was an established state process for resolving the issue, and the Court should never have taken the case. For another, the Court assumed prematurely that Bush had already suffered a wrong that it could address, when in fact it was unknown whether Bush or Gore would have prevailed in the recount. (22)

The Voting Rights Act—One section of the Voting Rights Act that was passed in 1965 required that states with a documented history of voting discrimination—mostly Southern states that had worked overtime for nearly a century to deny voting rights to African Americans—receive “preclearance” from the Justice Department or the United States District Court in Washington, DC, before implementing changes to their election laws. The purpose of preclearance was to ensure that states would not revert to election practices that overtly discriminated or that had discriminatory effects. The Voting Rights Act has been tremendously successful. In 1956, Black turnout was about fifty percentage points below that for Whites, whereas now, voting rates are roughly equal for both Whites and Blacks. Further, in 1965, there were only about 1,000 African Americans in elected office around the country, whereas by 2015, that number surpassed 10,000 office holders. (23)

In 2006, Congress reauthorized the Voting Rights Act, including the preclearance provision, for an additional twenty-five years. It passed unanimously in the Senate and with only thirty-three “nay” votes in the House. Between 1982 and 2006, the Justice Department had blocked over 700 voting changes, which is an indication that the preclearance states were still inclined to pass discriminatory voting practices. (24) Shelby County, Alabama, sued the U.S. Attorney General, arguing that the preclearance provision was unconstitutional. In a 5-4 decision, the conservative justices on the Court agreed with Shelby County in Shelby County v. Holder (2013) and said that the preclearance provision was out of date and unconstitutional. Combined with the Court’s disinterest in the negative effects of restrictive state voting laws, Shelby County has signaled that the Court will allow a variety of attempts to reduce the number of minorities, college students, and poor people from exercising their voting privileges. A study by the Brennan Center for Justice found that states that had previously been required to preclear their changes to voting law, purged voters off their election rolls at a significantly higher rate than other states in the wake of the Shelby County decision. (25) In 2016, for the first time in twenty years, the Black voter-turnout rate dropped in a presidential election, which may have been caused by voter suppression but might also have been due to Obama not being on the ballot. (26)

During the 2020 Coronavirus pandemic, the Court repeatedly acted to make it more difficult for people to vote. In the Wisconsin primary that year, the conservative majority blocked a lower court order that extended the period to return absentee ballots. This forced voters to stand in long lines during a pandemic to ensure that their votes counted. The conservative majority also blocked a lower court order in Alabama that would have made it easier for Alabamians to use absentee ballots rather than stand in lines. The Court refused to hear a challenge to a Texas law that makes it easy for older voters to use absentee ballots, but not those under the age of 65. (27)

Most recently, the conservative majority on the Court overturned a district court finding that two Arizona laws violated section 2 of the Voting Rights Act, which prohibits state election practice that “results in a denial or abridgement of the right. . .to vote on account of race or color.” One of the Arizona laws forbade anyone but family members or a postal worker from collecting ballots from voters to deliver to polling places—a provision that disproportionately affects Native American living in tribal lands that do not have reliable mail services and that are far removed from polling places. The second Arizona law invalidated the entire ballot of anyone who accidentally votes in the wrong precinct, even though votes for governor, U.S. senator, and president aren’t specific to precincts. Since Arizona officials tend to frequently change precinct boundaries, the lower court accepted that this would have a disproportionate impact on voters of color. The Supreme Court thought otherwise and sustained the Arizona laws, sending a strong signal to conservative state legislators that they can pass a range of election laws whose impact is to make the voting process more difficult for targeted populations. (28) In so doing, the Court further weakened the Voting Rights Act as a tool to promote democratic equality.

The most telling feature of the Court’s approach to democratic governance is its willingness to violate basic principles to accomplish what appears to be a goal of limiting the voice of ordinary people. It refrains from acting in some cases like the Rucho one on gerrymandering, citing its unwillingness to decide a “political question.” However, in other cases like Shelby County and Brnovich on the Voting Rights Act, the Court goes out of its way to gut the obvious intent of Congress to prevent voting discrimination by states–and does so using standards that are not in the Voting Rights Act. As the Campaign Legal Center concluded, because “it is difficult to pinpoint any principled and legitimate through-line in these decisions,” the Court’s decisions “have done, and continue to do, damage to voters, American democracy generally, and to the legitimacy of the Supreme Court itself.” (29)

The Major Questions Doctrine—Once firmly established in the majority on the Court, conservatives invented what they call the major question doctrine and have used it to undermine the will of the majority as expressed in Congress. The major questions doctrine holds that the Court may cancel any action of a federal agency if they deem it of “vast ‘economic and political significance,’” and if they feel that Congress’s grant of authority to the federal agency was not clear and specific enough. (30) Consider the following examples of the Court short-circuiting democracy:

• During the COVID-19 pandemic, the Biden administration used the Heroes Act to forgive up to $20,000 in student debt. It relied on the Heroes Act, which was passed unanimously by Congress in 2002 and signed by President George W. Bush. The Heroes Act allows the secretary of education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs. . .as the Secretary deems necessary in connection with a war or other military operation or national emergency.” The pandemic was a national emergency. The legislation appears clear, but the Court ruled 6-3 in Biden v. Nebraska (2023) that such action by the Biden administration was unconstitutional.
• In West Virginia v. Environmental Protection Agency (2022), the Court went out of its way to use the major questions doctrine to strike down the Obama-era EPA regulations that required many electric power generators to hit emissions reductions targets by 2030. As it turns out, the power generation industry met those targets by 2019—not because of the regulations but because it was in its economic interest to close older, dirtier (and expensive) plants and shift generation to newer, cleaner, and cheaper plants. The Obama-era regulations were clearly not of “vast economic and political significance” anymore, but the conservatives wanted to lay down a marker to say that the EPA did not have full authority to fight climate change via emissions reductions.

In the words of Ian Millhiser, the major questions doctrine is “breathtaking” in its implications and “makes the Supreme Court the final word on any policy question that Congress has delegated to an executive branch agency—effectively giving the unelected justices the power to override both elected branches of the federal government.” (31) One seems on solid ground in assuming that the conservatives on the Court know that the conservatives in Congress—even if they are a minority—will be able to block specific and clear grants of authority to executive agencies to fight climate change, protect wetlands, improve workers’ lives, and regulate financial institutions. Absent specific and clear grants of authority, the Court will be in the driver’s seat when it comes to deciding what actions federal agencies can undertake to follow through on their Congressionally mandated missions.

The Supreme Court’s Treatment of Women and Racial Minorities

Through much of its history, the exclusively White and male Supreme Court justices acted as though a key part of their charge was to maintain a social order in which women and people of color were relegated to second class status. It has only been through progressive changes in the law and the evolution of social norms that the Court was forced to embrace civil rights. Even then, the Court appears ever ready to look for opportunities to restrict the full emancipation of women and people of color.

Segregated Drinking Fountain Outside of a North Carolina Courthouse in 1938

From the beginning of the American republic until the 1950s, the Supreme Court acted as a strong enforcer of White supremacy. The Court held that people of African descent were “beings of an inferior order, and altogether unfit to associate with the white race” and that the rights of White people were not intended to apply to Black people. (30) It overturned the civil rights conviction of White men who killed African Americans. (31) The justices allowed segregation and discrimination on the part of hotels, restaurants, theaters, and other private businesses that served the public. (32) The Court upheld state laws banning interracial marriage. (33) The Court sanctioned state-mandated train segregation, which then applied to all sorts of public facilities like public schools and swimming pools. (34) This animus was not restricted to African Americans: the justices endorsed local authorities as they prevented a Chinese American girl from attending her local Whites-only school. (35) The Court allowed the federal government to detain and put Japanese Americans–most of whom were citizens–into camps, absent any individual or collective evidence that Japanese Americans posed a security threat during World War II even though they should have had the “equal protection of the laws” afforded by the Fourteenth Amendment. (36)

Beginning in the 1950s, the Court began to support equal rights for racial and ethnic minorities. This change was caused and reinforced by societal changes and strong civil rights laws that Congress managed to pass over the objections of Southern Democrats. We’ll talk more about those laws and court cases when we get to the section of the text that talks about civil rights. Suffice it to say that society forced the Court to end segregated education, segregated housing, bans on interracial marriages, voter discrimination, and employment discrimination based on race and ethnicity. However, as recently as Abbott v. Perez (2018), the Court upheld as legal a redistricting scheme that a lower court had determined was drawn to disenfranchise Black and Hispanic citizens. And in Husted v. A. Philip Randolph Institute (2018), the Court upheld a state voter purge law that had a disproportionate impact on people of color. 

Interestingly, the Court needed to play less of a role enforcing gender hierarchy than it did for White supremacy for the simple reason that women’s second-class citizenship was so taken for granted that women had difficulty pushing their issues to the highest court. Note that women’s constitutional right to vote came fifty years after it did for Black men. Justices ruled 8-1 in 1873 that Illinois did not violate the Fourteenth Amendment’s equal protection or privileges and immunities clauses when it would not allow women to be licensed to practice law. The Illinois court ruling that the Supreme Court upheld, said this: “That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth.” (37) The Court allowed states to place limits on women’s working hours when the Court, three years previously, had not allowed such limits on men’s working hours. (38) The justices sanctioned the forced sterilization of women deemed to be mentally disabled. (39)

Beginning in the mid-1960s, the Court was finally forced to confront women as equals to men within the context of civil rights laws and changing social norms. To its credit, the Court endorsed access to contraception for both married and unmarried couples as well. (40) The Court legalized abortion on a progressively more restrictive trimester basis in its Roe v. Wade (1973) decision. The Court made it illegal to post job announcements that specified gender requirements. (41) It ruled that sexual harassment is a violation of Title VII of the 1964 Civil Rights Act. (42) Recently, however, the Court withdrew from women a constitutional right for the first time. In Dobbs v. Jackson Women’s Health Organization (2022), the conservative majority said that “the Constitution does not confer a right to an abortion” because it is not explicitly enumerated in the document and because the right to an abortion is not “rooted in the nation’s history and tradition.”

We can say with a fair degree of confidence that since the 1950s, with respect to race, and since the 1960s, with respect to sex, the Supreme Court has been forced by collective action and shifting societal norms to redeem itself. Only the public’s vigilance with respect to federal statutes and a keen eye toward the kinds of justices that get appointed to the Court will ensure that the Court acts to uphold ordinary Americans’ rights. Absent that vigilance, empowered elites will be inclined to push the Court to its historical pattern, which legal scholar Ian Millhiser so deftly summarizes:

“The justices. . .have routinely committed two complementary sins against the Constitution. They’ve embraced extra-constitutional limits on the government’s ability to protect the most vulnerable Americans, while simultaneously refusing to enforce rights that are explicitly enshrined in the Constitution’s text. And they paved a trail of misery as a result. Few institutions have inflicted greater suffering on more Americans than the Supreme Court of the United States.” (43)

In their book Justice Deferred the historian Orville Burton and the civil rights lawyer Armand Derfner see the Court in a similar way. There is a dividing line on the Court, they argue, with progressive justices interpreting the Constitution and civil rights statutes “to mean the most they can mean,” while conservative justices interpreting the Constitution and civil rights statutes “to mean the least they have to mean.” The fact that conservatives have dominated the judicial branch through most of American history means that the Court has primarily acted as a conservative force in America, using its power to enforce a hierarchy in which subordinated classes and racial minorities have difficulty achieving agency and equality. (44)

What if . . . ?

What if the Supreme Court were a force for democracy and agency among ordinary people? What would be required for that to happen? Changes in the language of the Constitution? Changes in the kinds of people sitting on the Supreme Court? A revitalization of the importance of the Constitution’s preamble in the adjudication of disputes?

References

1. Michael Parenti, Democracy for the Few, 9th edition. Boston: Wadsworth, 2011. Pages 249-250.
2. Lee Epstein and Eric Posner, “If the Supreme Court is Nakedly Political, Can it be Just?” New York Times. July 9, 2018.
3. Lee Epstein, William M. Landes, and Richard A. Posner, “How Business Fares in the Supreme Court.” Minnesota Law Review. 97:1431. April 16, 2013. Page 1433
4. Corey Robin, The Reactionary Mind: Conservatism from Edmund Burke to Donald Trump. 2nd edition. New York: Oxford University Press, 2018. Pages 7-8.
5. Adam Cohen, “Justice Breyer’s Legacy-Defining Decision,” The Atlantic. June 12, 2021.
6. Dartmouth College v. Woodward(1819).
7. Santa Clara County v. Southern Pacific Railroad Company(1886). Justice Waite quoted in William Myers, The Santa Clara Blues: Corporate Personhood Versus Democracy. III Publishing, 2000. Page 6.
8. Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights. New York: Liveright Publishing Corporation, 2018. James C. Nelson, “There’s No More Activist Court Than the US Supreme Court,” Counterpunch. February 3, 2022.
9. William Myers, The Santa Clara Blues: Corporate Personhood Versus Democracy. III Publishing, 2000. Page 6. Refer to See v. City of Seattle(1967) and Marshall v. Barlow’s, Inc.(1978).
10. Just two of many examples: Central Hudson Gas & Electric Corp v. Public Service Commission of New York(1980) and POM Wonderful LLC v. Coca-Cola Co. (2014).
11. Sheldon Whitehouse, Captured: The Corporate Infiltration of American Democracy. New York: The New Press, 2021. Page 94.
12. John C. Coates, IV, Corporate Speech and the First Amendment: History, Data, and Implications. February 27, 2015. Page 31. Pdf available here.
13. Lee Epstein, William M. Landes, and Richard A. Posner, “How Business Fares in the Supreme Court.” Minnesota Law Review. 97:1431. April 16, 2013. No Author, “Corporations and the Supreme Court,” Constitutional Accountability Center. No date, but retrieved on August 15, 2022.
14. Adam Feldman, “The Big Business Court,” Empirical SCOTUS. August 8, 2018.
15. Janus v. AFSCME(2018).
16. David A. Kaplan, The Most Dangerous Branch. Inside the Supreme Court’s Assault on the Constitution. New York: Crown, 2018.
17. Reynolds v. Sims(1964).
18. Evenwel v. Abbott(2016). Richard Wolf, “Supreme Court Upholds ‘One-Person, One-Vote,’” USA Today. April 4, 2016.
19. Erwin Chemerinsky, The Case Against the Supreme Court. New York: Viking, 2014. Pages 9-11.
20. We should note, however, that the Court sometimes sets the bar very high when it comes to cases of racial gerrymandering. In Abbott v. Perez(2018) the Court upheld as legal a redistricting scheme that a lower court had established was drawn to disenfranchise black and Hispanic citizens.
21. Ariane de Vogue and Devan Cole, “Supreme Court Allows Severe Partisan Gerrymandering to Continue,” CNN. June 27, 2019.
22. Erwin Chemerinsky, The Case Against the Supreme Court. New York: Viking, 2014. Pages 234-249.
23. Niraj Chokshi, “Where Black Voters Stand 50 Years After the Voting Rights Act was Passed,” The Washington Post. March 3, 2015.
24. James D. Zirin, Supremely Partisan. How Raw Politics Tips the Scales in the United States Supreme Court. Lanham, Maryland: Rowman & Littlefield, 2016. Page 176.
25. Kevin Morris, Myrna Perez, Jonathan Brater, and Christopher Deluzio, “Purges: A Growing Threat to the Right to Vote,” The Brennan Center for Justice. July 20, 2018. See also Husted v. A. Philip Randolph Institute (2018)
26. Jens Manuel Krogstad and Mark Hugo Lopez, “Black Voter Turnout Fell in 2016, Even as a Record Number of Americans Cast Ballots,” The Pew Research Center. May 12, 2017.
27. Ian Millhiser, “The Supreme Court Just Handed Down Dome Truly Awful News for Voting Rights,” Vox. July 3, 2020. Josh Gerstein, “Liberals Recoil at SCOTUS’ Wisconsin Primary Decision,” Politico. April 7, 2020.
28. Ian Millhiser, “The Supreme Court Leaves the Voting Rights Act Alive—But Only Barely,” Vox. July 1, 2021. Omeed Alerasool, “A Primer on Brnovich v. DNC: The Supreme Court’s Latest Voting Rights Case,” The Equal Democracy Project at Harvard Law School. March 7, 2021.
29. No Author, The Supreme Court’s Role in Undermining U.S. Democracy. Campaign Legal Center. July 13, 2022.
30. Kate R. Bowers and Daniel J. Sheffner, The Supreme Court’s “Major Questions” Doctrine: Background and Recent Developments. Congressional Research Service. May 17, 2022. Page 1.
31. Ian Millhiser, “How the Supreme Court Put Itself in Charge of the Executive Branch,” Vox. July 17, 2023.
32. Dred Scott v. Sanford (1857)
33. United States v. Cruikshank (1876)
34. The Civil Rights Cases (1883)
35. Pace v. Alabama (1883)
36. Plessy v. Ferguson (1896)
37. Lum v. Rice (1927)
38. Korematsu v. United States (1944)
39. Bradwell v. State of Illinois (1873)
40. Muller v. Oregon (1908)
41. Buck v. Bell (1927)
42. Griswold v. Connecticut(1965) and Eisenstadt v. Baird (1972)
43. Pittsburgh Press Co. v. Pittsburgh Commission on HumanRelations (1973)
44. Meritor Savings Bank v. Vinson(1986)
45. Ian Millhiser, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted. New York: Nation Books, 2015. Page xiii.
46. Orville Vernon Burton and Armand Derfner, Justice Deferred: Race and the Supreme Court. Cambridge, Massachusetts: Harvard University Press, 2021. Page 338.

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