That’s about to change. In the next few years, the court will most likely confront issues that run along our country’s most volatile dividing lines: President Obama’s health care law, same-sex marriage, affirmative action, abortion restrictions and police stops of undocumented immigrants. Bitter confirmation fights are inevitable, too. And with the left already outnumbered five to four on the Roberts court, liberals are feeling no small amount of trepidation heading into this period, as if the basic tenets of compassionate governance could be brought low. So in the spirit of planning ahead (what else is August good for?), here is a rundown of the perils and the possibilities facing liberals as the court moves toward a potentially transformative moment in its history.
The Newest Members Are Not to Be Trifled With
The court’s most recent additions, the Obama appointees Sonia Sotomayor (two years on the bench) and Elena Kagan (one year), have quickly become a formidable duo on the court’s left flank, with the promise to serve as a 21st-century version of Thurgood Marshall and William Brennan. They have voted the same way in 96 percent of the cases they have both heard — the highest rate of agreement of any pair of justices.
But what’s more interesting is that the two women couldn’t be less alike in their leadership styles. Sotomayor seems to relish going it alone as the court’s liberal voice of conscience. She wrote five solo dissents and concurrences this year to Kagan’s none. And she has been far more concerned about the rights of the convicted on the high court than she was earlier in her career. In the 29 opinions Sotomayor wrote as a district and appeals court judge, she never once granted relief to a prisoner petitioning for a writ of habeas corpus, the appeal of last resort for the convicted. Yet this year, Sotomayor took the rare step of publicly opposing the court’s decision not to hear the petition of a Louisiana prisoner who stopped taking his H.I.V. medication to protest a prison transfer and sued for being punished with hard labor in 100-degree heat. She actually pulled this petition out of a stack of thousands that prisoners submit without lawyers, making a cause célèbre of a humble plea. With this, Sotomayor set herself up to be the court’s hard-charging liberal — à la Marshall, who liked to take his shots, diplomatic maneuvering be damned.
Kagan, meanwhile, has positioned herself as chief diplomat (reminiscent of Brennan). As a D.C. lawyer familiar with the court put it, “If you asked every justice who Justice Kagan’s favorite is, they’d all name themselves, except maybe Chief Justice Roberts.” Justice Ruth Bader Ginsburg has been so impressed by Kagan’s work that she told me, “Elena has it in her to be one of the exemplary justices of our time.” That’s wild enthusiasm from one justice to another. As the most senior member of the court’s left wing, Ginsburg now has the power to decide who will write the dissent when the court splits five-to-four along ideological lines. She gave two of the big cases to Kagan, who came through with dissents that were models of forceful clarity and that even employed humor in search of a wider audience. “Some people might call that chutzpah,” she quipped, in response to the argument that political candidates who “chose to spurn” public financing could block their opponents from receiving it. For legal writing, that counts as a funny bit (trust me).
So what does having two new strong liberal justices mean? In most contested cases, nothing. The numbers on the court are still against them. But strong dissents play to the future, by reminding the country that there’s another way. Then there’s the three-woman voting bloc that Sotomayor and Kagan form with Ginsburg. The trio could try to make it harder for the government to treat men and women differently. The current standard for upholding a law or practice rooted in gender difference is somewhere between “rational basis” (where just about any government rationale will do) and “strict scrutiny” (where the government has to show it really knows what it’s doing). If they can get a couple of men on their side (hello, Stephen Breyer, Anthony Kennedy and maybe even Antonin Scalia), the court’s three women could raise the bar for sex discrimination to strict scrutiny.
Is Anthony Kennedy Dropping Clues?
In one of this term’s splashiest five-to-four cases, Justice Kennedy wrote the court’s decision to uphold an order to reduce California’s prisoner population by as much as 46,000; he may have also signaled his support for Obama’s health care law. The prisoner case was about how extreme overcrowding in the penal system has led to inadequate medical care, which Kennedy called “incompatible with the concept of human dignity.” So if prisoners are entitled to adequate care, you’d think the rest of us would be too. Kennedy also used the word “dignity” three times in his 2003 opinion throwing out the sodomy prosecution of two gay men, tantalizing liberals with the possibility that he will someday bless same-sex marriage.
But progressives shouldn’t swoon too hard over Kennedy. Last term, he was part of the five-justice majority that upheld Arizona’s effort to crack down on businesses that hire illegal immigrants, suggesting that he might also uphold that state’s practice of stopping people to ask for their papers if it reaches the court. Overall in his career, as an analysis by the University of Southern California law professor Lee Epstein shows, the swing justice’s views line up almost exactly with the president who chose him. That would be Ronald Reagan, who was no friend to the left, no matter how many times Obama invokes him in speeches.
The Bench Is Not Deep
In the last quarter century, the pool of possible Supreme Court justices has generally come from the federal appeals courts. Obama broke that mold by selecting Kagan, then his solicitor general, partly because they were ideologically simpatico, but also for a more dispiriting reason: Democrats simply don’t have many federal appellate judges to choose from. Particularly young ones. Since 1981, Epstein says, Republicans have appointed 41 federal appellate judges under age 45 to the Democrats’ 10. Bush placed 13 judges in this group. Obama, so far, has zero.
Because the president once taught constitutional law, some liberals thought he would shower the lower courts with attention, realizing that these judges turn the Supreme Court’s vague decrees into actual marching orders for the country. Instead, Obama and the Democratic-controlled Senate have — surprise — shied away from confirmation fights and left the federal bench with more than 80 vacancies for more than two years, a historical record.
If Obama doesn’t make a big push soon to confirm many more judges, especially young ones, his failure will come back to haunt him and his party. Or here’s the positive spin: all those openings are a giant Democratic opportunity. Even if the next few years on the high court prove difficult for liberals, at least they can fight back against conservative dominance from the federal bench.