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Noah’s arc of history


Noah “please confirm my good friend and potential future hirer of my favorite students Amy Coney Barrett” Feldman ups the ante, coming out against judicial reform measures by offering readers a fantasy alternative history of the Supreme Court:

Behind all of these questions lurks a deeper one: Does the Supreme Court really need reform? It’s worth remembering that the undoubtedly conservative Supreme Court that has existed over the last 30 years give us gay rights, gay marriage, and now statutory protection for the rights of trans people. 

This is exactly the remarkably successful con Republicans have run throughout this period — letting conservative outrage/liberal celebration over a few high-profile liberal decisions give them a incredible deal where the Supreme Court churns out mostly reactionary outcomes, but liberals both like the Court more and are less likely to mobilize around it. Donald Trump probably owes his election to this dynamic.

But please stop kidding yourself — it’s completely false. I will be doing some posts about it when we discuss in my Supreme Court later this quarter, but Adam Cohen’s Supreme Inequality does a marvelous job of detailing the countless ways in which the Court has been producing pro-business, anti-civil rights, and anti-civil liberties outcomes since constitutional hardball allowed Nixon to quickly take over the Court in 1970.

The same court has chipped away at affirmative action, but has not (yet) eliminated it. Ditto for abortion rights.

Even as a defense of the Rehnquist and Roberts Courts, this is pretty thin gruel. The Court only sometimes issues ridiculous opinions striking down innocuous affirmative action programs! It has forced states to limit abortion by creating an elaborate regulatory obstacle course rather than outright bans! And, of course, as soon as Coney Barrett is confirmed the “yet” will become moot.

But again this shows the extent to which the fake-minimalist practice of hollowing out precedents while nominally retaining them has been a huge PR coup for the Republican Court. Brown v. Board has effectively been a dead letter since 1974 — but sunny liberal defenses of the Court won’t even mention it because everybody pretends that it remains the source of bipartisan consensus.

Also, there’s a pretty big Roger Taney still hanging in the air and…

Yes, it eviscerated the Voting Rights Act, but in a way Congress could repair if it so chose.

LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL. Seriously who could possibly believe that there’s any preclearance formula that Roberts — who deliberately didn’t even specify a standard of review precisely so he could keep both the “equal sovereignty” and “congruence and proportionality” “doctrines” handy to strike down and formula that covered between 0 and 52 states — would approve. You can only wonder to what extent Feldman is lying to his readers and lying to himself.

The key text here is Mark Tushnet’s post-Bush v. Gore article, in which he outlines the strategies certain legal liberals will use to rationalize literally anything, because the alternative is admitting that the CLS account of Supreme Court decision-making is basically right.

In fact, in the almost 90 years since Franklin Delano Roosevelt became president, the Supreme Court has been better for liberals than for conservatives. 

No, no, no, no, no, no. Look, here is a sum total of the years since 1937 — and, hence, since, well, pretty much ever — in which there has been a liberal median vote on the Supreme Court:

1937: Hughes

1938: Stone

1962: Goldberg

1963: Brennan

1964/5: Black

1966/7: Marshall

1969: Black

That’s it. And while there are a few terms, like 2014, in which liberals won more high-profile cases although the median justice wasn’t a liberal, on the other hand I’m being very generous in counting Black in his cranky “you can take the justice out of Jim Crow Alabama but…” phase. I mean, give RBG this: while her decision to stay on after 2013 was deeply unfortunate, she was at least capable of doing the job until the end. Black should have retired sometime in the mid-60s not only for strategic reasons but because he had turned into Justice Abe Simpson:

One does not need to be a prophet or the son of a prophet to know that after the Court’s holding today some students in Iowa schools and indeed in all schools will be ready, able, and willing to defy their teachers on practically all orders. This is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too familiar to all who read the newspapers and watch the television news programs, have already engaged in rioting, property seizures, and destruction. They have picketed schools to force students not to cross their picket lines and have too often violently attacked earnest but frightened students who wanted an education that the pickets did not want them to get.

(This case was about students being disciplined for silently wearing armbands.)

Paul and I discussed this in our recent pod, but it’s worth noting that even in its brief heyday that ended 50 years ago the Warren Court offered…mainstream liberalism, not remotely as far to the left as the Roberts Court is to the right. William Douglas, just a New Deal left-liberal, is so far to the left of any other 20th century justice that it’s hard to graph Supreme Court ideology in a visually pleasing manner.

That could change, to be sure.

“Could.” (As soon as ACB is confirmed the median vote of the Court would have to turn to his or her left to see Antonin Scalia.) Again, I have to think he’s trying to convince himself more than anyone else here.

But Democrats need to think hard about the dangers of changing a Supreme Court that has, in many instances, advanced the causes of equality and justice even when most of its members were self-described conservatives appointed by Republicans.

Actually, Democrats need to remember that liberal outcomes have been outliers for the vast majority of the Supreme Court’s history, and most of the liberal victories of the last few decades were the product of defeating Robert Bork and Stevens and Souter being accidents an entire industrial complex has sprung up to ensure never happen again. The Court has been bad on net for a long time, it’s about to get much worse, and it must be reformed if Democrats want to be able to govern and American democracy is to be preserved against its mortal enemies.

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