The Center Cannot Hold

I have a quasi-longform up at the New Republic about the Supreme Court during the Obama administration and the forthcoming period of transition. My two central points are that 1)although there were some big liberal wins and Obama’s legislative agenda mostly survived intact, we shouldn’t forget how conservative the Roberts Court has been and 2)the Court is about to take a major lurch to the left or right:

The chief justice’s defense of Obamacare marked a high point in the Court’s deference to the legislature and common sense. It should be noted, however, that the legal challenges to the ACA were not entirely unsuccessful. Combined with the actions of Republian statehouses, the Court’s inept and illogical re-writing of the Medicaid expansion in Sebelius has denied health care coverage to millions of poor people. We also shouldn’t forget the Court’s 2014 decision to strike down the mandate requiring employers to provide contraceptive coverage as part of taxpayer-subsidized health plans.

Still, the fact that the Court mostly upheld the Affordable Care Act, combined with major victories on gay and lesbian rights, abortion, and affirmative action, suggest a Court that is politically unpredictable and more capable of compromise than the political branches. But it would be unwise to assume that past results will be repeated in the future.

With the admittedly crucial exception of Sebelius, the liberal victories of the Roberts Court were due to one man: Anthony Kennedy. This isn’t surprising. Since early in the Nixon administration, the median vote on the Court on the most politically salient issues has been a Republican, but a moderate, country-club Republican: Potter Stewart, Lewis Powell, Sandra Day O’Connor, and now Kennedy.

The issue going forward is that this kind of Republican is rapidly going extinct. (It is no coincidence that Kennedy was Ronald Reagan’s third choice, after a disastrous attempt to nominate arch-conservative jurist Robert Bork.) As Donald Trump’s list of prospective judges indicates, future Republican nominees are going to be in the mold of Samuel Alito and Roberts, not O’Connor and Kennedy. This will be true for two reasons: A Republican president will face intense pressure from the Republican conference not to pick “another Souter,” and a Republican president may have a hard time finding a fairly young, moderate Republican judge to nominate even if he wanted one. The political scientist Amanda Hollis-Brusky, author of a definitive recent study of the conservative legal group the Federalist Society, says the group “performs the dual function of vetting and credentialing judges, as well as acting as a vocal audience pressuring Republican presidents to pick reliable conservatives.”

As the University of Maryland law professor Mark Graber explained in a recent paper, the Supreme Court has historically been a centrist institution. But the tendency of the Court to represent, for better or worse, the political center was not inevitable. It stemmed from the fact that elites—from whose ranks Supreme Court justices are generally chosen—tend to have less polarized views than ordinary members of the party.

In 2016, however, exactly the opposite is true: Party elites are much farther apart than voters are. Donald Trump’s rise is, in part, a reflection of the increasing gap between the GOP’s elites and its voters, exemplified by his blasé attitude toward conservative orthodoxy.

A decade from now, the Supreme Court will almost certainly not be controlled by either a moderate Republican like Anthony Kennedy or a heterodox liberal like Byron White, a JFK nominee who dissented in Miranda v. Arizona (which established Miranda rights) and Roe v. Wade (which established the right to an abortion). The median vote on the Court will almost certainly be a conservative in the mold of Alito or Roberts, or a liberal in the mold of Ruth Bader Ginsburg.

…as Joe points out in comments, this Linda Greenhouse piece on the asymmetric polarization of the Court is important related reading.