First Monday Musings By Dean Vik Amar: The Supreme Court Going Forward

How much does the Supreme Court matter in the big picture?

Dean Vikram David Amar

Dean Vikram David Amar

At the end of my last column, I reminded readers that almost all law deans were law professors before becoming deans, and remain professors during their deanships. As leaders in the world of legal education, deans must stay active in both the “legal” and “education” worlds, not just in the administrative realm, in order to really be doing our jobs.

So given that today is the first Monday in October – the traditional start date for the Supreme Court’s annual Term (and why I – as a constitutional law professor – use the title “First Monday Musings” for my monthly Above the Law essays), today I speak (about where the Supreme Court is and where it may be going) not so much as a dean, but as someone who has studied the Justices and their craft for about 30 years.

It is surprising that the Court has not been getting more play during the presidential campaign; as far as I can recall, the Court was never mentioned during the first Clinton-Trump debate. But this is a huge moment for the Court. It’s not just that, with Antonin Scalia’s passing, the Court is short-handed and deadlocked 4-4 on many questions. It is that – and this fact isn’t widely discussed – there is a good chance the Court will soon have a majority of its members appointed by Democratic presidents, something that hasn’t happened since mid-1969, before Neil Armstrong set foot on the moon.

And it’s not just that the seat Justice Scalia held is open. And not even just that Ruth Bader Ginsburg is already 83. It’s that Anthony Kennedy is 80, and Steve Breyer is 78. That means that four years from now – before the end of the next president’s first Term – Justice Ginsburg would be 87, Justice Kennedy 84, and Justice Breyer 82. Remember too that the last three presidents (Bill Clinton, George W. Bush and Barack Obama) have all served two full terms. If that were to happen with this year’s winner, it’s reasonably likely that the next president would be filling four Supreme Court seats – almost half the Court (and that’s barring any unforeseen departures.) Not many presidents have had four or more picks to the Court; many who did were in the nineteenth century (when the Court made far fewer important rulings).

And the next president will likely have more sway than earlier presidents who filled many vacancies, because Supreme Court appointees today are less likely to “disappoint” the presidents who select them, because the modern vetting process is deeper and more ideologically thorough. Take Richard Nixon, the last president who had four appointments. Two of his picks, Lewis Powell and Harry Blackmun, turned out rather centrist on the Court (with Blackmun in the latter part of his career voting in big cases mostly with liberal lions William Brennan and Thurgood Marshall.) Or, more recently, take George H.W. Bush. One of his picks to the Court, David Souter, turned out to be much more liberal than the Republicans who backed Souter expected.

By contrast, all six picks by the last three presidents have largely fulfilled ideological expectations. (Justice Breyer may be a bit more moderate than many of his backers hoped, but certainly did not surprise like Souter or Blackmun.) To be sure, some of the current justices may evolve (and Justices Kagan and Sotomayor are fairly new), but the kind of drift we saw with respect to appointments made before the 1990s is not likely to recur anytime soon; the presidents, the senators, and the interest groups are simply more sophisticated about these things.

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All of this raises the question: How much does the Supreme Court matter in the big picture? My friend and fellow constitutional law scholar Michael Dorf recently wrote an essay (for Justia.com, where both of us are regular columnists) pointing out that analysts sometimes have a tendency to overstate the importance of the Court in modern life. He used same-sex marriage and gun rights as examples. As rhetorically significant as the Supreme Court’s rulings in Obergefell (recognizing a federal constitutional right to same-sex marriage) and Heller (recognizing an individual right to keep arms under the Second Amendment) may have been, Mike observed, the reality is that same-sex marriage was likely inevitable (almost) everywhere in the U.S. because of the political trends, and gun rights at the state constitutional level usually exceed Heller’s federal protections anyway. This is fair enough (although the extent to which earlier marriage equality Supreme Court rulings like Windsor contributed to the political trends Mike described, and the extent to which state law often looks to federal rulings for leadership, should not be discounted). But there are many other hugely important areas of law that would be dramatically affected by the next president. I’m not talking so much about Citizens United (which Democratic candidates have railed against), since I’m not sure how easy it would be to write an opinion or a constitutional amendment saying corporations can be limited in their partisan expenditures. (How to exempt media corporations like the New York Times, which writes many editorials that are partisan, is a challenge.) But let’s take two other areas.

Mike wrote that the courts “largely defer to Congress and the executive branch on whether and how to regulate the economy.” Maybe that is accurate in ordinary cases in ordinary times, but think about Obamacare. Four justices voted to strike it down in 2012, and three of them persisted in their willingness to gut the law via statutory interpretation three years later. It is possible that some of the dissenters in those cases might have balked if they had a provisional majority to undo the biggest and most hotly debated statute in the past 50 years. But I have little doubt that if, in 2012, instead of having Justices Kagan and Sotomayor on the Court we had one or two additional versions of Justice Clarence Thomas or Justice Samuel Alito, the result would have been different.

Focusing again not only on what the Court has done but what it might have done, I would remind folks of the 4-4 split this summer on the question of blocking the Fourth Circuit’s stay of the North Carolina voter ID law, which the lower courts had found specifically targeted those ID forms used most often by African Americans. Had Justice Scalia not died, it is extremely likely that the voter ID would have remained in effect for this presidential election.

Finally, think once more about what the Court might do with respect to the death penalty. If a Democratic president were to fill Justice Scalia’s empty seat along with Justice Kennedy’s seat should he step down during the next president’s time in office (and even, perhaps if Justice Kennedy remains), it is quite plausible that a majority of the Court will invalidate the death penalty as a general matter.

So whether one has a conservative or liberal judicial outlook, and even if one is focusing only on issues we know will come before the Court (to say nothing of the issues we can’t yet foresee), the Court that begins its Term today will likely go down in history as the last Court that existed prior to the reshaping likely to be done by the next president.

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Vikram Amar is the Dean of the University of Illinois College of Law, where he also serves the Iwan Foundation Professor of Law. His primary fields of teaching and study are constitutional law, federal courts, and civil and criminal procedure. A fuller bio and CV can be found at https://www.law.illinois.edu/faculty/profile/VikramAmar, and he can be reached at amar@illinois.edu.