Under John Roberts, Court Re-Rights Itself

By Edward Lazarus
Sunday, July 1, 2007; B01

LOS ANGELES This term at the Supreme Court was a nearly unmitigated disaster for progressives. By 5-to-4 votes, the justices upheld limits on abortion, dealt a staggering blow to school desegregation, lacerated campaign finance reform, made it harder for women to sue for equal pay, curtailed the free speech rights of students, loosened various legal restrictions on business and greased the skids for convictions in death penalty cases.

Cumulatively, the court of Chief Justice John G. Roberts Jr. announced itself as even more conservative than William H. Rehnquist's court, which, from 1986 to 2005, undercut many of the progressive initiatives from Earl Warren's era. The Roberts court also showed little regard for the court's own precedents, overruling or eviscerating a slew of past decisions that did not conform to conservative principles.

Progressives are shell-shocked. They believe that the Roberts court has transformed the branch of government singularly devoted to the protection of our rights and liberties into a facilitator of discrimination and a guardian of powerful political and moneyed interests. Much the same holds true at the lower federal court level. Conservative appointees dominate almost all of the federal courts of appeals.

When the shock wears off, however, progressives will have to ask themselves whether they should ever have expected (or sought) so much from the judiciary. And they should think about what they can realistically expect in the future. The progressive approach to looking to the judiciary for social and political salvation has always run against the grain of history. And if progressives are going to advance their agenda in court going forward, they probably will need a significantly different strategy and focus.

The court's history shows that the periods of entrenched conservatism dwarf the progressive moments. In the Dred Scott case, the court put its imprimatur on slavery and helped usher in the Civil War. After the war, Congress amended the Constitution to guarantee every American equality under the law and all the privileges and immunities of citizenship. But the Supreme Court quickly gave these new amendments narrow constructions. The result was 80 years of Jim Crow (and more court decisions finding racial oppression unobjectionable).

With respect to civil liberties, the court has a long tradition of reactionary rulings. Around World War I, for example, it ignored the rights of free speech and due process as the government aggressively tamped down on political dissent and union organizing. During World War II, the court approved the wholesale internment of Japanese Americans. Then, in the 1950s, it gave a green light to McCarthyism until very late in the day.

The court has a history of economic conservatism, as well. From the 1890s through the mid-1930s, in particular, it attended far more closely to the rights of business than to the rights of individuals. It struck down state and federal economic reforms (such as minimum-wage and maximum-hour laws, as well as Depression-era price controls) as unconstitutional socialism.

The 19-year period from 1954 (when the court decided Brown v. Board of Education) through 1973 (when it ruled on Roe v. Wade) stands out as a progressive aberration -- the only time since the 1820s that the court stood at the forefront of legal and political reform. In this sense, the past 33 years of accelerating rightward drift have been a return to conservative normalcy. Why did we see the court otherwise? Because we either experienced the Warren era court or became enraptured with its description in our civics books.

Scholars can debate whether there is something intrinsic to the institution -- such as the demographics of the justices or the often retrospective nature of judicial review -- that has created its historical tendency toward conservatism. But even if one does not concede that the court will generally be no more (and sometimes less) progressive than national politics as a whole, there can be little doubt that today's conservative bent will hold true for many years to come.

The next justice to retire will probably be the leader of the liberal wing, John Paul Stevens, who, however robust, is 87. And there are no conservative retirees in sight. Accordingly, even if a Democrat wins the White House in 2008, he or she probably will be able to preserve only the court's current ideological make-up. If a Republican wins, the court may well move further to the right.

This forbidding reality all but forecloses any additional advancement in the judiciary on the two broad progressive legal planks of the modern era.

The first of these is what could fairly be called the "equality agenda" -- the battle to redeem the Constitution's promise of equality from the grip of Jim Crow and a history of discrimination against women and minorities.

To a significant degree, this agenda has become a victim of its own success. Led in no small part by the court, the nation has placed itself indelibly on record as aspiring to a society in which people of both sexes and various races, ethnicities and religious groups receive equal treatment under law. But to the extent that we are not yet one nation -- one people -- all equal in rights and opportunities, progressives will now have to turn to forums other than the court for further progress.

And the same holds true for the second initiative -- the "civil liberties" agenda, whereby progressives sought to expand the constitutional rights of individuals, including criminal suspects, against the power of the state. With a conservative court presiding in this age of terrorism, the real question is not what gains progressives may make in this area, but how much ground they will lose.

The challenge for progressives, then, is twofold. The first is to wean themselves off what has become an excessive reliance on the judicial branch to achieve their social and political goals. Progressives will now have to win their battles in the political arena.

Second, progressives need to consider whether they can make common cause with some conservatives. Such a potential agenda does exist. Call it the "accountability agenda," focused on greater transparency in government and on enforcing the checks and balances at the Constitution's structural core.

Conservatives of a more libertarian stripe are as concerned as progressives about overreaching claims of unreviewable executive authority, as the decisions rebuffing the Bush administration's policies on enemy combatants have already shown. Both progressive and conservative judicial philosophies can embrace a judicial role in policing the limits of governmental power and in making our democratic processes more robust.

The lesson for progressives of the court term that just ended is that a rare triumphant chapter in judicial history has come to a definitive close, and that they will have to think differently and creatively if the next chapter is to be something other than tragedy.

Edward Lazarus is the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."