What A McCain Court Would Be (And What It Wouldn’t)

Since we haven’t heard much about the courts in this election, I suppose it’s worth noting that given the likely retirements of Ginsburg (75 year-old cancer survivor), Souter (69, hates D.C. and isn’t crazy about the job) and Stevens (in college when the word “damn” could generate national controversy; may have seen Cap Anson play live) and the fact that the other federal courts are already stacked with Republicans, a McCain presidency would have far-reaching and very bad consequences for the judiciary that would extend for decades. If you don’t believe me, believe the usually Panglossian Jeffrey Rosen.

Since an Obama win that would preserve the current conservative majority for a while is more likely, it’s worth pointing out that while his overall argument is correct and useful I think Rosen is actually overreaching a little. He writes:

It’s true that certain kinds of conservative nominees would change the Court more dramatically than others. Activist conservatives, who yearn for the resurrection of what they call the Constitution in Exile, would be far more likely to challenge Congress and to strike down a range of federal regulations, from health care and the environment to the economic bailout. By contrast, deferential conservatives, who believe in judicial minimalism across the board, would generally uphold laws passed by Congress as well as the states.

Leaving aside the fact that it’s primarily liberals, not conservatives, who use the “Constitution in Exile” label, I still think that this is misstating the impact of conservative appointments to the courts. I’m not worried about even a McCain-fortified Court ruling major New Deal regulatory programs unconstitutional, and even if they were to do so this would work out about as well as it did in 1935; the Court is not going to survive a struggle against strongly committed legislative and popular majorities. They might overturn Roe and a few other Warren/early Burger precedents explicitly, but will no embark on a major challenge to the basic framework of the federal government. A more conservative court would be much more likely do more of what’s it already doing. Not to overturn the Civil Rights Act on commerce clause grounds, for example, but rather to interpret statutory language in ways that make it much more difficult to bring lawsuits (and hope that, as with Ledbetter, institutional veto points can prevent legislative majorities from responding.)

Which bring us to the second problem, which is relevant no matter who wins the election: the conflation of “minimalist” and “deferential.” One has nothing to do with the other. O’Connor, an arch-minimalist if there ever was one, is also about as far from “deferential” as you can get. And this is precisely what caused Rosen to miss the boat on Roberts. As Alito and Roberts demonstrate, it’s perfectly possible to be a formal “minimalist” and a doctrinaire conservative “activist.” And precisely because minimalists are less likely to make bold pronouncements or explicitly overrule precedents, they’re likely to accomplish similar things while insulating the court from political retaliation. And because they aren’t attached to grand jurisprudential theories, minimalists are also likely to be if anything more consistent about reaching conservative policy outcomes.

In other words, if anything Alito and Robetrs are more dangerous to American progressives than Scalia. Whoever is appointing the next round of federal judges, it’s important to remember this and not be distracted by implausible fears of a “Constitution in Exile” returning.