Edward Lazarus: The Supreme Court and Public Opinion: Will They Soon Diverge, If a Democrat Is Elected This Year?
[Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. ]
Throughout our history, the Supreme Court has moved in and out of sync with public opinion and the dominant political sentiment in the country.
In the early 1930s, for example, the Court - led by the famous "Four Horsemen of the Apocalypse" - stood in stark opposition to President Franklin Roosevelt's economic reform program and the progressive political current that he rode to multiple re-elections. Although changes in personnel at the Court eventually brought it back into harmony with contemporary politics, a serious clash between the Court and the presidency was only narrowly averted, by the "switch in time that saved nine" through which one Justice decided FDR's programs were constitutional after all.
On the opposite side of the coin, in the late 1960s, at the end of the Warren era, the Court's liberal decisions expanding the rights of criminal defendants set the Court at odds with the law- and-order mood that carried Richard Nixon to the White House.
Over the last 20 years or so, there has been an overall congruence between the general ideological thrust of the Court's decisions, and the dominant political current in the nation at large. But as the 2008 presidential campaign heats up, it seems at least possible that this quiet equilibrium will come to a crashing end and the Court will find itself very much at odds with public opinion and the dominant views in the elected branches of government. Thus, it may be well worth looking at other Court shifts to see what may be in store for us all.
As the Court is an institution made up of life-tenured members with little turnover and a tradition of respecting past decisions, political cycles at the Court tend to evolve slowly. Generally, it takes a significant and sustained political shift in the body politic before a commensurate change will occur at the Court.
The gradual dismantling of the legacy of the liberal Warren era is a case in point. Chief Justice Earl Warren retired in 1969. But over the next 17 years, his conservative predecessor Chief Justice Warren Burger had relatively little success in reversing the Court's generally liberal bent. To the contrary, the Burger Court sometimes extended the Warren Court's liberal decision-making, as occurred most notably in 1973 when it handed down Roe v. Wade.
However, by the time William Rehnquist took over as Chief Justice in 1986, the Court was finally poised to re-align itself with a country that had moved fairly steadily to the right over the previous 15 years. By this time, Republican Presidents (Richard Nixon, Gerald Ford, and Ronald Reagan) had replaced six members of the old Warren Court (all but William Brennan, Thurgood Marshall, and the more conservative Byron White). On many issues, this tipped the Court into a narrow conservative majority consisting of Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and, on most issues, Justice White - slightly outnumbering the more liberal wing consisting of Justices Brennan, Marshall, Harry Blackmun, and John Paul Stevens.
This basic alignment held for the next two decades. David Souter replaced Brennan. Clarence Thomas replaced Marshall. Ruth Bader Ginsburg replaced Byron White. And Stephen Breyer replaced Blackmun. But overall, the political balance of the Court remained relatively unchanged - with a five-vote majority controlled by O'Connor and Kennedy steering the Court towards the same moderate conservatism that prevailed in a body politic that elected a relatively moderate Republican (George H.W. Bush), a moderate Democrat (Bill Clinton), and a supposedly compassionate conservative (George W. Bush)....
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Throughout our history, the Supreme Court has moved in and out of sync with public opinion and the dominant political sentiment in the country.
In the early 1930s, for example, the Court - led by the famous "Four Horsemen of the Apocalypse" - stood in stark opposition to President Franklin Roosevelt's economic reform program and the progressive political current that he rode to multiple re-elections. Although changes in personnel at the Court eventually brought it back into harmony with contemporary politics, a serious clash between the Court and the presidency was only narrowly averted, by the "switch in time that saved nine" through which one Justice decided FDR's programs were constitutional after all.
On the opposite side of the coin, in the late 1960s, at the end of the Warren era, the Court's liberal decisions expanding the rights of criminal defendants set the Court at odds with the law- and-order mood that carried Richard Nixon to the White House.
Over the last 20 years or so, there has been an overall congruence between the general ideological thrust of the Court's decisions, and the dominant political current in the nation at large. But as the 2008 presidential campaign heats up, it seems at least possible that this quiet equilibrium will come to a crashing end and the Court will find itself very much at odds with public opinion and the dominant views in the elected branches of government. Thus, it may be well worth looking at other Court shifts to see what may be in store for us all.
As the Court is an institution made up of life-tenured members with little turnover and a tradition of respecting past decisions, political cycles at the Court tend to evolve slowly. Generally, it takes a significant and sustained political shift in the body politic before a commensurate change will occur at the Court.
The gradual dismantling of the legacy of the liberal Warren era is a case in point. Chief Justice Earl Warren retired in 1969. But over the next 17 years, his conservative predecessor Chief Justice Warren Burger had relatively little success in reversing the Court's generally liberal bent. To the contrary, the Burger Court sometimes extended the Warren Court's liberal decision-making, as occurred most notably in 1973 when it handed down Roe v. Wade.
However, by the time William Rehnquist took over as Chief Justice in 1986, the Court was finally poised to re-align itself with a country that had moved fairly steadily to the right over the previous 15 years. By this time, Republican Presidents (Richard Nixon, Gerald Ford, and Ronald Reagan) had replaced six members of the old Warren Court (all but William Brennan, Thurgood Marshall, and the more conservative Byron White). On many issues, this tipped the Court into a narrow conservative majority consisting of Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and, on most issues, Justice White - slightly outnumbering the more liberal wing consisting of Justices Brennan, Marshall, Harry Blackmun, and John Paul Stevens.
This basic alignment held for the next two decades. David Souter replaced Brennan. Clarence Thomas replaced Marshall. Ruth Bader Ginsburg replaced Byron White. And Stephen Breyer replaced Blackmun. But overall, the political balance of the Court remained relatively unchanged - with a five-vote majority controlled by O'Connor and Kennedy steering the Court towards the same moderate conservatism that prevailed in a body politic that elected a relatively moderate Republican (George H.W. Bush), a moderate Democrat (Bill Clinton), and a supposedly compassionate conservative (George W. Bush)....