By David Cole
Liberals are understandably excited, and conservatives equally concerned, that the Supreme Court seat vacated by Justice Antonin Scalia’s death may be filled by a Democratic president — with either Merrick Garland, President Obama’s nominee, or Hillary Clinton’s nominee, should she win the election. The court’s ideological majority lies in the balance.
The conservatives have had a long run. While control of the presidency and both houses of Congress has changed hands multiple times over the past 40 years, the Supreme Court has been dominated by a consistent majority of conservative justices since the 1970s, even as some Republican appointees, such as David Souter and Harry A. Blackmun, proved to be liberal. The court is now evenly divided, with four liberal and four conservative justices. With a liberal majority in the offing, a whole new world of possibilities awaits.
Or does it? History suggests otherwise. The Supreme Court under Chief Justices Warren E. Burger, William H. Rehnquist and John G. Roberts Jr. has overruled relatively few liberal constitutional precedents. Despite strong invitations to do so, the court did not reverse Roe v. Wade (protecting the right to choose an abortion) or Miranda v. Arizona (requiring warnings and legal assistance in interrogations). It has not ended affirmative action or overturned decisions banning the public display of religious symbols. Even if Garland or some other Democratic nominee is confirmed, therefore, major changes in existing constitutional doctrine are unlikely. The force of precedent imposes significant limits on the court’s ability to change direction, even when its personnel change.
Major transformations of constitutional law do occur, but they require much more than a new justice. They generally follow decades of persistent advocacy in a variety of forums, primarily outside the Supreme Court. The court is much more likely to recognize constitutional change than to generate it. And it tends to do so slowly, only after the ground of public opinion and state law has already shifted. Constitutional law changes incrementally, from the ground up, not suddenly, from the top down.
Brown v. Board of Education, which said segregated schools violated the equal protection clause of the 14th Amendment, came only after a decades-long campaign by civil rights lawyers and activists. The court first recognized gender discrimination as a violation of equal protection only after the women’s movement had transformed understandings of women’s roles in society more generally. While some have criticized it as premature, the decision in Roe to protect a woman’s right to choose abortion similarly followed a political campaign for reproductive rights. The court’s 2008 ruling that the Second Amendment protects an individual right to bear arms is attributable to three decades of concerted work by the National Rifle Association and its allies to develop and propagate the idea of a right to bear arms in other forums, including state legislatures, state courts, the political arena and the legal academy.
The same is true for the newest constitutional right — of toeivah couples to marry on the same terms as regular couples. In 1972, the court unanimously ruled that a petition arguing that the Constitution requires recognition of same-gender marriage did not even present a serious legal question; it dismissed the petition with one line. Yet last year, in Obergefell v. Hodges, the court recognized a constitutional right to marriage equality. That remarkable shift cannot be explained by changed personnel. The court in 2015 was, if anything, more conservative than the court in 1972. Rather, one must look at the work that gay rights groups did in a wide variety of forums beyond the federal courts to change public opinion about the status of toeivah people, and about the justice of their desire to marry. The Supreme Court did not so much change constitutional law on marriage equality as acknowledge that it had changed.
Constitutional law will continue to develop in the post-Scalia era. But the changes will come more from the sustained work of committed citizens than from the appointment of a new justice. Over the course of our history, the true catalysts of constitutional evolution have been not the justices — although they obviously play a necessary part — but the people, working together through civil society to make their own shared vision of constitutional ideals into law. Constitutional law reflects what we as a society deem to be our most fundamental values, and those values evolve. But in the most important sense, the impetus for change comes from us, not from the men and women who serve as justices of the Supreme Court.
Cole, a professor at the Georgetown University Law Center, is author of the new book “Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law.”
(c) The Washington Post · David Cole