Courting Controversy

By Jeffrey Rosen

Ever since Robert Bork was defeated in his 1987 bid for a seat on the Supreme Court, liberals have feared that the court would turn right on the issues they care most about. And this was the year their fears finally began to be vindicated. As the first full term with both Justices John Roberts and Samuel Alito came to a close, it became increasingly clear that in the post--Sandra Day O'Connor era, the center of the court has shifted several degrees to the right. Both Alito and Anthony Kennedy, who has emerged as the new swing Justice, are more conservative than O'Connor was on some key issues that came before the Justices this term. As a result, the court tacked right in decisions on issues ranging from partial-birth abortion and employment discrimination to, in recent days, campaign finance.

Some observers believe that if the Democrats win the presidency in 2008, the clash between a more conservative Supreme Court and a more liberal White House and Congress might reach historic proportions. "You could have significant conflict between the court and the political branches, one that we probably haven't seen since the 1930s," Samuel Issacharoff of the New York University School of Law has suggested. Yet throughout American history, the President and Congress have gotten angry at the court only when it frustrated the will of a large national majority. In many cases in which the Roberts Court is turning right, it appears to have at least a narrow majority of the country on its side.

Think about the issues in which the center of the court, defined by Kennedy, is now more conservative than it was with O'Connor. The federal ban on partial-birth abortion? Polls consistently show overwhelming support for it. Affirmative action? After the Supreme Court upheld the University of Michigan Law School's affirmative-action plan in 2003, Michigan voters repudiated it in a referendum. "Any court on which Justice Kennedy is the median voter will never do anything to provoke dramatic backlashes," says Michael Klarman of the University of Virginia School of Law, "because Justice Kennedy has his finger on the pulse of Middle America even more than Justice O'Connor did." In the last week of the term, Kennedy joined 5-4 opinions upholding the power of school principals to discipline students and limiting challenges to public funding of religion. Those aren't likely to provoke a widespread rebellion.

If the court reversed Roe v. Wade or began striking down environmental laws like the Clean Air Act, national majorities might well become energized and alarmed. Although Justice Clarence Thomas has signaled his willingness to overturn Roe and gut the heart of the regulatory state, Kennedy is unlikely to provide a fifth vote for either. In the partial-birth case, he repeated his longstanding view that although late-term abortions could be restricted, the early-term abortions at the core of Roe had to be protected. And he made clear his support for environmental regulations when he joined the court's four liberals in holding that the Bush Environmental Protection Agency thwarted the will of Congress in refusing to regulate greenhouse gases.

If congressional Democrats want to pick a fight with the court in the short term, in hopes of prompting a leftward shift, they'll have to be careful to choose issues in which they can count on support from a significant majority of the country. Rather than try to repeal the popular ban on partial-birth abortion--which many Democratic voters support--they might try instead to protect gender equality by overturning the court's narrow interpretation of the federal law prohibiting pay discrimination.

But to mount a successful challenge to the court, Democrats not only need to have public opinion behind them; they also have to mobilize it effectively. During a handful of periods in American history--like the New Deal--congressional opposition to the court was so intense that the court did an about-face. More frequently, though, opposition has been more diffuse, leading the court to beat only a partial retreat or ignore its critics. During the 1960s, for example, Congress complained about the Warren Court's school prayer and apportionment decisions, but there was no public outcry, and the court stood its ground.

Now that Congress has been recaptured by the Democrats, liberals have an opportunity to flex their muscles at the court. But as long as the court moves only as far to the right as a majority of the country will tolerate, its critics will have an uphill battle.

Rosen, a George Washington University law professor, wrote The Supreme Court: The Personalities and Rivalries That Defined America