A Trumpist Constitution?

A Trumpist Constitution?

Conservative judges are advancing a vision of a country divided by religion, culture, and race, where Christians, white men, and corporate interests get special constitutional protection. We need a strategy to respond.

President Trump, Judge Kavanaugh and Anthony M. Kennedy during Kavanaugh's swearing-in ceremony. (Official White House Photo by Joyce N. Boghosian)

In late April, the Supreme Court held oral arguments on the Trump administration’s proposal to modify the U.S. Census by asking respondents whether they are citizens. The citizenship question is widely regarded as a tactic to discourage non-citizens from responding. If they go uncounted, the Census will underestimate populations in the states where they live. Because the Census is the basis for allocating congressional seats among states, the result could be a loss in representation for Democratic-leaning states such as California and New York, and toward more homogenous and Republican-leaning states. It’s a Trumpist double-play: politically weaponizing immigration and citizenship status while trying to game elections to extend the grip on power of a Republican Party that has lost the popular vote in six of the last seven presidential races and has adopted voter suppression as an imperative of survival. All too predictably, while the four liberal justices seemed to see the proposal as an “arbitrary and capricious” hijacking of the Census for partisan ends, the conservative majority saw an ordinary exercise of government. Like last year’s decision blandly upholding of Trump’s Muslim-targeting travel ban, the arguments over the Census were a disappointment to those who hope Trump’s unprincipled and divisive style will reawaken the Court as a forum of liberal principle.

The trend is the opposite. By early April 2019, President Trump had appointed ninety-four federal judges to lifetime seats, including fifty-four members of the federal district courts, thirty-seven on the courts of appeals, and Justices Neil Gorsuch and Brett Kavanaugh, who will shape Supreme Court jurisprudence for a generation. This is a bit ahead of the usual pace—both Barack Obama and George W. Bush named just over 325 federal judges in eight years—reflecting a distinctively efficient and disciplined operation for a shambolic administration. As many commentators have pointed out, the federal courts will keep Trump’s legacy in play long after we can hope that voters will have repudiated his presidency. The courts, which liberals habitually celebrate for their independence from majority will, are emerging as the ideal institutions for a minority party to entrench power against voting majorities.

Between the Electoral College and the Senate, a minority president can nominate judges for confirmation by senators representing a smallish minority of the country. (Senators voting to confirm Kavanaugh represented 44 percent of Americans.) If progressives enact ambitious legislation such as a Green New Deal in the next decade, right-wingers are sure to strafe it in court with creative constitutional challenges, as they recently have the Affordable Care Act, the Voting Rights Act, and various economic and public-health regulations that have fallen to a “weaponized” First Amendment. Extending statehood to Washington, D.C., and Puerto Rico, a progressive tactic to correct non-representation and rebalance control of the Senate, would also be attacked as unconstitutional.

Whether or not they have a Green New Deal to adjudicate, in the next decade the higher federal courts will find their counter-majoritarian work entangled with the minoritarian politics of Trump’s Republican Party. Republican politics is now openly defined by Trumpist themes. With conservative voters already alert to judicial politics on account of decades of attacks on abortion rights, Republicans may increasingly call on judges to validate red-state voter suppression, xenophobic border policies, and conservatives’ feeling that they need to be protected politically in their white and conservative identities. If courts respond to these calls—as some are already doing—they will mark themselves as right-leaning, anti-majoritarian institutions in a divided country.

The constitutional vision that conservative judges advance is shaping up to be one of a country divided by religion, culture, and race, where Christians and white men need special constitutional protection against anti-discrimination laws and affirmative action policies. In red and purple states, its elections will be structured to prevent “voter fraud” and to sustain minority rule by a dwindling Republican electorate. Its immigration policies will be shaped by religious and racial nationalism when the president finds it convenient. A Court that sustains the Republican Party will probably also keep eroding workers’ rights and economic regulation, as the justices have been doing since the Warren Court ended. The question is whether a Court that breaks so unambiguously to the right of the country will attract a new generation of court-packing and other political attacks. Progressives will need a strategy to respond, whether they attack the courts, try to sideline them, or develop a competing agenda for their own judges.

 

The constitutional status of democracy itself is at stake in the face of persistent efforts to discourage voting by the younger, poorer, and non-white citizens who tend to support Democrats. A split has emerged in the federal courts over gerrymandering and ballot access. Considering an early-voter-ID law from Indiana in 2008, a fractured Supreme Court accepted the Republican narrative that such measures are necessary to prevent voter fraud, while liberal dissenters pointed out, as Democrats regularly do, that there was (and is) no evidence of widespread voter fraud. Former Justice John Paul Stevens, a Nixon appointee who ended his career as an idiosyncratic liberal, wrote the opinion upholding the law but has since expressed doubts about it.

Recently, federal courts have invalidated parts of restrictive voting laws from North Carolina and Texas, and the question is likely to reach the Supreme Court again. Federal appeals courts are weighing challenges to strict voter-ID laws in Alabama and Wisconsin, and a challenge to North Dakota’s law is in federal trial court. Although the Supreme Court earlier this year held that Ohio’s practice of purging inactive voters from the roles after four years did not violate the National Voter Registration Act, that decision does not preclude arguments that voter purges target minority voters or otherwise violate the Constitution. Indiana’s voter-purge law is now under challenge. Plaintiffs are also challenging other Republican vote-suppression tactics, including a Michigan ban on straight-ticket voting (which a trial court found unconstitutionally targeted black voters) and a Kansas law requiring people who register while visiting the DMV to show citizenship documents. Conservative judges generally continue to accept the argument that state governments need to police fraud and rigorously clean out inactive voters, while liberals have come around to the view that the current wave of state laws amount to a Republican effort to suppress non-white voters.

Since Trump’s election, federal prosecutors in North Carolina have brought criminal charges for illegal voting against at least thirty-one people, some non-citizens and some with felony records. These cases tend to confirm that illegal voting is rare and usually a mistake, but prosecutions and convictions will give a nominal basis to the Republican rationale for stricter ballot-access laws. Whichever voting case next reaches the Supreme Court, the conservative justices will have a factual record for the view that voting must be hard in order to prevent fraud, at the cost of politically motivated prosecutions. (Ironically, the most substantial case of actual fraud in recent decades is a 2018 Republican effort to manipulate absentee ballots in North Carolina’s ninth congressional district.)

 

Then there is the constitutional status of xenophobia. Trump’s attacks on migrants and asylum-seekers in the run-up to the 2018 midterm elections confirmed that he sees a fearful and racialized nationalism as key to his political appeal. The court will have to decide what limit, if any, the law places on manipulation and abuse of foreigners at the country’s borders. In Trump v. Hawaii, the 5-4 case upholding the president’s partial ban on travelers from some majority-Muslim countries, the four dissenters acknowledged that Trump was politicizing border management in a way not seen in peacetime since the 1920s (when Congress adopted a racially exclusionary system of immigration quotas that lasted forty years). Chief Justice Roberts’s majority opinion treated the ban as constitutional business-as-usual, despite the Trump’s calls for a “complete shutdown” of Muslims entering the country and description of the travel ban as a way to accomplish that goal. Justice Anthony Kennedy issued a weary-sounding concurrence urging the president to abide by constitutional values. “An anxious world must know,” he wrote, “that our Government remains committed always to the liberties the Constitution serves to preserve and protect, so that freedom extends outward, and lasts.” But by joining Roberts’s opinion, Kennedy helped send the opposite message. There is no reason to think that Justice Kavanaugh will be more scrupulous.

A federal appeals court in California has upheld a trial court’s ruling that Trump cannot strip asylum eligibility from refugees who cross the border somewhere other than a designated “point of entry”—a key administration tactic for slowing entry of Central American migrants and concentrating them at the Mexican border. This case and future ones will decide whether the rule of law provides some guarantee of fair treatment at the border. Based on the Court’s 2018 travel ban ruling, there is not much reason for optimism.

 

For four decades, the Court has struggled over the meaning of the anti-discrimination principle of Brown v. Board of Education, and by extension over the place of race in the constitutional order. Roberts has argued, so far without a majority, that race must not make any difference in public policy, so that as a constitutional matter affirmative action is just as bad as segregation. The conservative justices present this “color-blind” view as a moral principle. As Justice Clarence Thomas put it, in a 1995 concurrence against a federal affirmative action program, “In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by a malicious prejudice.” A suit alleging that Harvard illegally discriminates against Asian-American applicants, which is now in federal trial court in Boston, will likely give the justices a chance to adopt this view as law by basing the decision on a broad principle of color-blindness.

The color-blind view of the Constitution chimes with resentment of affirmative action among Trump’s supporters. In Strangers in Their Own Land, a recent study of grassroots supporters of the populist right, sociologist Arlie Russell Hochschild described their “deep story” as centered on the idea that favored groups—minorities, immigrants, public employees—were “skipping the line” of the American dream, getting benefits they hadn’t earned, while others waited patiently but with growing frustration. The color-blind view implies that racism is a problem of the past, and today’s inequality comes from differences in talent and effort, not structural disadvantage. Constitutionalizing this stance has symbolic importance beyond the practical consequences of outlawing affirmative action. It bolsters the populist resentment of “line skippers” and discounts complaints about structural inequality as pleas for special treatment. It echoes the Trumpist strategy of defining white, conservative resentments as patriotic principle and the interests and indignation of other groups as un-American.

The culture wars around gender and sexuality may also enter a new era under the Trump Court. Trump’s Republican party appeals to the fear that same-sex marriage and transgender rights will marginalize people with older attitudes as bigots, and this worry resonates in the conservative judiciary. In Obergefell v. Hodges, the 2015 ruling establishing a constitutional right to same-sex marriage, Justice Samuel Alito warned in dissent that the decision would “be used to vilify Americans who are unwilling to assent to the new orthodoxy,” who “will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public . . . will risk being labeled as bigots and treated as such by governments, employers, and schools.”

Conservatives advance “religious liberty” as a shield in the form of exemption from certain anti-discrimination laws. Last year in Masterpiece Cakeshop v. Colorado, a dispute between a same-sex couple and a Christian baker who claimed that the First Amendment gave him the right to refuse to make them a wedding cake, Justice Kennedy wrote a narrow ruling for the baker, and the Court avoided addressing a fight over the revolution in gay rights and gender identity. Justice Gorsuch wrote separately to argue that the baker’s First Amendment rights had clearly been violated. Now the baker, Jack Phillips, is back in federal court, reprising his First Amendment argument to defend his refusal to bake a cake celebrating a gender transition. If the post-Kennedy Court expands exemptions from civil rights protections, it will make itself the protector of an important Republican constituency and help to redefine the Constitution as erecting fences among mutually suspicious cultural groups rather than enforcing a unifying principle of equality.

 

Abortion has been central to the politics of the Court at least since the 1976 Republican Party platform called for a constitutional amendment to reverse Roe v. Wade, which in 1973 established the right to choose abortion. That right has been intermittently on the brink since 1992, when a Court consisting entirely of Republican-appointed justices surprised many observers by upholding the core of Roe in Planned Parenthood v. Casey. In 2005, Alito replaced Justice Sandra Day O’Connor, who voted in the majority in Casey, leaving Justice Kennedy the shaky linchpin in a narrow majority for abortion rights.

The Alabama statute banning abortion from conception is the latest move in a ghoulish game of jurisprudential chicken in which state legislatures pass plainly unconstitutional abortion bans, partly for political points but also vying to spur the case that reverses Roe after some liberal justice or another has been replaced. Iowa, Ohio, Kentucky, and Mississippi are also in the running, having recently banned abortion as soon as a “fetal heartbeat” is detectable, as early as six weeks. Louisiana and both Dakotas have  “trigger statutes” on the books that would outlaw abortion immediately if Roe were reversed.

Liberal advocacy groups made “Save Roe” a rallying cry for their opposition to Kavanaugh, but the Court does not have to overturn Roe to bury the abortion right. The new generation of anti-abortion laws that advocates call “targeted restrictions on abortion providers”—the ultimate in regulatory concern-trolling—bury abortion providers in requirements that make their work impossibly expensive. Lawmakers argue, with faces carefully kept straight, that the regulations are necessary to protect women’s health. In 2016 five justices, including Kennedy, rejected this rationale in Whole Woman’s Health v. Hellerstadt and invalidated a Texas law that required the state’s abortion facilities to maintain hospital-grade surgical facilities and staffing. Justice Stephen Breyer wrote for the Court that the law served no valid purpose and burdened the abortion right unconstitutionally, particularly in the state’s rural areas. It will be surprising if Kavanaugh follows Kennedy and agrees to subject such regulations to aggressive review. Federal judges are weighing a challenge to an Arkansas law that piles restrictions onto widely used and relatively simple medication abortions (the so-called “abortion pill” procedure). If the Court upholds these and other regulations targeting abortion providers, red-state legislatures can hamstring the abortion right without waiting for the justices to decide Roe’s fate.

Hardcore abortion opponents want to ban the procedure nationally, but the jurisprudential strategy on abortion, like the First Amendment argument for exemption for anti-discrimination laws, is basically a separatist one. The goal is to let red states and religious communities enforce more conservative principles within certain domains. Justice Kennedy wrote his major opinions with a very different goal: to draw a common, binding principle out of deep disagreement. In the joint opinion that he co-authored with Justices O’Connor and David Souter in 1992’s Planned Parenthood v. Casey, he argued that Roe v. Wade “calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” In a long concurrence in Parents Involved in Community Schools v. Seattle School District No. 1, a 2007 affirmative action case in which he cast the decisive vote, he evoked fulsomely both the ideal of color-blindness and the reality of pervasive discrimination and injustice. His opinion in Obergefell, the same-sex marriage case, lavished sympathetic attention on opponents’ attachment to traditional marriage and labored to draw the right to marry out of the uncontroversial values of traditional marriage itself. The reasoning convinced few conservatives—it was the Obergefell opinion that prompted Alito to warn that traditionalists would be hounded as bigots—and in both Parents Involved and Masterpiece Cakeshop, Kennedy punted on the question of principle before him, deciding the cases on narrow grounds. These opinions—long, open to moral complexity, ultimately narrow wins for liberals—did a lot to keep alive the idea that the Court was still, at its core, a politically impartial institution.

 

The courts have long confounded progressives. They are non-democratic and often in practice anti-democratic, but sometimes—especially in the decades after the Second World War that spanned Brown v. Board of Education (1954) and Roe v. Wade (1973), and recently in cases protecting sexual minorities and establishing marriage equality—they have seemed to be important forums of principle. In the midst of Kavanaugh’s angry and ugly confirmation hearings, the New York Times was still “explaining” to its readers that the Supreme Court’s “legitimacy” depends on being seen as above politics. It is conventional to hark back wistfully to bipartisan support for Supreme Court nominees, sometimes while engaged in trench warfare over current ones.

Like most idyllic pasts, the one where the Supreme Court presided over placid constitutional consensus never existed. All the way back in 1803, a Jeffersonian Congress impeached Justice Samuel Chase, a partisan Federalist. Many members of that Congress had participated in drafting and ratifying the Constitution and had first-hand knowledge of the original vision of the Supreme Court, which did not dissuade them from attacking it on partisan grounds. In 1861, Abraham Lincoln faced down the Chief Justice who had sworn him into office, Roger Taney, and announced that if Taney’s pro-slavery opinion in the Dred Scott case were allowed to decide the issue, “the people will have ceased to be their own rulers.” In 1863, the Civil War Congress, without representation from the Confederacy, added a justice to the Court to help ensure support for Lincoln’s program. In 1922, the prominent Wisconsin Senator Robert La Follette proposed a constitutional amendment authorizing Congress to override Supreme Court opinions by a two-thirds vote, and future Justice Felix Frankfurter, then a Harvard law professor, defended him. Frankfurter approvingly quoted Theodore Roosevelt, who, in his own fights with a Court that invalidated the first national income tax and federal antitrust statute, had announced, “I may not know much about law, but I do know one can put the fear of God into judges.” Conflict over the power of the Supreme Court is not a breach of constitutional tradition. It is constitutional tradition.

The lesson of history is not simply that the Supreme Court is always involved in the politics of the time, getting attacked by those who oppose its decisions and defended by its ideological allies. That’s true of every political institution: Democrats worried about excessive presidential power when George W. Bush issued signing statements suggesting he wouldn’t enforce certain parts of newly adopted laws, Republicans when Barack Obama used the his control over prosecutorial priorities to protect Dreamers and their families from deportation. The Court, however, has a specific problem with legitimacy. In the last decade, the votes of five justices have invalidated the Affordable Care Act’s Medicaid expansion, the campaign-finance limitations in the McCain-Feingold legislation, and key portions of the Voting Rights Act. In each case legislation that had emerged from elections and drafting fights and compromise upon compromise fell to a single judge’s vote. Naturally the question arises why these five are the people who decide—and, to put a finer point on it, why Anthony Kennedy spent some fifteen years determining the boundaries of American democracy, and why John Roberts will likely play that role for the next fifteen. The danger that the Supreme Court will convert the losers of a political fight into the winning side based on partisan or moral preferences is what agitated Lincoln, the Jeffersonian Congress, and other critics down to Franklin Roosevelt, who famously proposed to “pack” the court by adding new justices.

Even the period that did most to create the image of the Supreme Court as an impartial steward of national values was a time of fierce division. Between 1954 and 1969, the Court under Chief Justice Earl Warren created constitutional principles that became part of the national consensus, including “separate is not equal,” in Brown v. Board of Education, “one person, one vote,” in two landmark voting-rights decisions, and a broad right of free speech, in a decision in favor of a Ku Klux Klan leader. Brown was unanimous, but public opinion was not. In the same years 101 congressmen signed the 1956 “Southern Manifesto,” denouncing Brown v. Board, and “Impeach Earl Warren” billboards appeared along the highways in Goldwater country.

Like much else that happened in those years, the Court’s experience left an outsized mark on the decades that followed. The decisive opinions tended to be unanimous or near-unanimous. They put the Court in the best possible light, protecting unpopular opinions from criminal punishment and enforcing national principles of personal equality against mainly Southern legal systems built on white supremacy. In the four decades following 1937, when the Supreme Court acceded to the New Deal, the justices had stopped protecting the economic “liberties” of companies and employers from regulation, which had always been what angered progressive critics. Since 1976, when the Court struck down limits on campaign spending and drug advertising, it has used the First Amendment to protect moneyed interests as much as to shield unpopular political opinions, and conservative justices have used the anti-segregation principle of Brown to limit affirmative action. But the image of the Court as the nation’s impartial arbiter hung on for more than a generation after the Warren years.

Today, after Senate Republicans’ refusal to grant a hearing to Merrick Garland and the Kavanaugh confirmation, we are back to more candid recognition of conflict. The benefit of lost illusions is clarity about what is at stake. The justices don’t just take sides in political and cultural fights; like everyone else in the country, they live within them, participating in the enthusiasms and biases and fears of their time and social set. They write wartime opinions when the country is at war, expansive civil rights opinions when the horizon of justice seems broad and inviting, and fractured and contentious opinions in a time of division and mutual mistrust like our own.

Justices now write opinions aware that their decisions will be taken in light of liberal enthusiasm for the dissents of the “Notorious RBG” and intense suspicion of Kavanaugh, and the reverse on the right, and will have to decide whether to play to their publics, aim to placate their critics, or studiously avoid anything that strays from the driest legal analysis.

The Supreme Court’s political appeal as an anti-majoritarian institution is usually rooted in its supporters’ worries about how their fellow citizens will use power. A hundred years ago, the Court won conservative supporters by protecting employers and companies against regulation. Fifty years ago, it won liberal supporters by protecting racial and religious minorities. Today it does some of both, slashing economic regulation and campaign-finance reform while also protecting gay rights and—for the moment—the rudiments of the abortion right. Despite itself, while alienating nearly everyone and reviving questions about its legitimacy, the Court has created constituencies that cut across ideologies. Even as its rulings deepen the erosion of democracy by Trumpist cultural politics and minority rule, it may hold a fragile legitimacy because people trust other institutions less, and ultimately because they mistrust one another. On the other hand, progressives may convince the country that the way to rebuild a legitimate Supreme Court starts with what Felix Frankfurter recommended: shaking up the judges.

 

Political criticism of courts is normal democratic politics. It’s all the more so when courts are sharply anti-democratic and aligned with a waning minority party. But the criticism should be principled: in favor of democracy, and with a clear idea of what work courts should be doing. The challenge will be to contest their power in the name of a genuine and inclusive self-governance, and to define the modest but essential role of judges in that vision.

For progressives, this should mean an updated version of what it meant in the Warren Court years: a program of fair procedures in institutions such as criminal justice and the immigration system, where tens of millions of people are subjected to arbitrary and often biased government power, and a foundational commitment to democracy itself, above all the right to vote (against voter suppression) and for majorities to choose the majority of their representatives (against gerrymandering). It should also mean a clear understanding of what courts should not do: above all, lard up the power of corporations and the wealthy with “rights” to spend unlimited amounts in political campaigns, avoid regulation, undercut unions, erode workers’ protections with arbitration, and other gambits that conservative courts have recently embraced.

In other words, progressive courts need a vision of political economy, not because they should adjudicate economic matters but because a clear picture of how economic power works shows that it doesn’t need to be backed up by judicial power. The courts should exist to facilitate a fair form of democracy, not to shield economic power while helping along Republicans’ divide-and-rule strategy. In a time of rolling crises—political, economic, ecological—we don’t have time for that.


Jedediah Britton-Purdy teaches at Columbia and is the author, most recently, of After Nature: A Politics for the Anthropocene (Harvard University Press, 2015). He is a member of the Dissent editorial board.


Duggan | University of California Press Gardels