America’s decline into illiberalism: Aided and abetted by its Supreme Court

'If you have five votes, you can do anything' is the mantra for the Supreme Court of the United States of America. This has led to a gradual slide towards the right-wing agenda and a decline of liberal constitutional values. 

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IN October of 1953, Earl Warren was nominated as the Chief Justice of the United States (US) Supreme Court by President Dwight Eisenhower.

Justice Warren had a reputation. He was the Republican governor of California for a third term when the call came, a former Attorney General of the state and a running mate to Republican, Thomas Dewey who lost to Harry Truman in 1948. When appointed to the Supreme Court, Warren had all the credentials of a right-wing Republican.

Warren, however, was to disillusion Eisenhower and the Republicans. He was to become one of the most liberal chief justices that the US ever produced. After a spate of decisions against the government, especially ruling against the House Committee for Un-American Activities (famously known as McCarthyism) and against racial segregation (Brown versus Board of Education), Eisenhower fumed that he had "never been as mad".

The Warren Court, as the court was called, lasted until June 1969, when Earl Warren retired. The President then was Richard Nixon. Nixon was happy to see him go. Thus ended the most liberal period in the US justice system.

Jeffrey Toobin writes that between 1953 and 1969, the Warren Court "exerted a powerful and lasting influence over American law".

"On the freedom of speech, on the rights of criminal suspects, on the emerging field of privacy, the Warren Court transformed American law," he continues.

Akhil Reed Amar in his book, America's Unwritten Constitution, published in 2012, wrote, "And good riddance to that old order! Such has been the general attitude of post-Warren America to the Warren Court revolution… Thus, lawyers, judges, politicians, and pundits of all stripes— liberals and conservatives, originalists and living constitutionalists— now take for granted the basics of the Warren Court and argue with the Warren framework."

How wrong was he! Within a decade, the US Supreme Court would be a conservative one, bent on overturning most of the Warren Court's rulings.

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The right-wing conservative agenda's implementation started in the era of the next two chief justices, both appointed by Republican presidents, Warren Burger and William Rehnquist. Both the chief justices did their best to undo the Warren Court but did not succeed at all.

Nevertheless, the great decision, Roe versus Wade, which established the constitutional right to abortion, happened during the Burger Court.

Burger happened to be an egoist and pushy and was not able to carry the court as Warren did. Rehnquist, who later on went to be the Chief Justice after Burger retired, was nominated by Nixon as an associate justice. Rehnquist did not disappoint his backers.

As per Jane Sherron De Hart, "He turned out to be a conservative activist willing to sacrifice strict construction in order to shift the law toward the political right." The political shift to the right had started. When Rehnquist died in office, John Roberts, another right-wing conservative, was nominated as Chief Justice by President George W. Bush.

The fault in our ratios

As we know, the US Supreme Court justices are nominated by the President and then confirmed by the Senate by a simple majority. The justices have a lifetime tenure. So, one would find judges who have been on the Bench for more than two decades, sometimes three.

Since 2000, the Republicans have sent five conservative judges to the Supreme Court: John Roberts, the Chief Justice (Bush Jr.); Samuel Alito (Bush Jr.); Neil Gorsuch (Trump); Brett Kavanaugh (Trump) and Amy Coney Barrett (Trump).

Clarence Thomas, also a Republican nominee, was appointed by Bush Sr. in 1991. Sonia Sotomayor (Obama), Elana Kegan (Obama) and Ketanji Brown Jackson (Biden) were Democratic Presidents' nominations.

That makes it weighted 6:3 in favour of the conservative agenda. With about ten months left in his presidency, Obama nominated Merrick Garland, the chief judge of the D.C. Circuit, to succeed Antonin Scalia, who had died.

But the Republicans thwarted his effort by saying, "The American people should have a voice in the selection of their next Supreme Court justice." A fatuous argument.

This, however, did not seem to concern the Republicans when Trump nominated and the Senate confirmed Amy Coney Barret in October 2020, just ten days before the November presidential elections. Had Obama succeeded, the usual 5:4 would have remained.

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The ratio used to be 5:4 for decades with a 'swing justice' occupying the ideological center to whom any argument had to be addressed if it was to succeed, as described by Linda Greenhouse in her book.

A configuration that lasted for decades "beginning with Justice Lewis Powell in the central role in the late 1970s to the mid-1980s; moving to Sandra Day O'Connor until her retirement in early 2006 and then for the next twelve years shifting to Antony Kennedy, followed briefly by John Roberts."

Though as Chief Justice, Roberts does play the role of the swing justice sometimes, his total commitment to liberal ideas is non-existent. His swing vote happens when he fears that the court decisions may not be in tune with the popular thinking or that the decision might harm the court's image. Further, he has been, of late, an advocate of stare decisis.

In the Warren Court, there was Thurgood Marshall, who made his name fighting for the Blacks. Marshall's strategic choice and presentation of his litigation campaign for the NAACP Legal Defense and Educational Fund led to the landmark Brown in 1954.

Later, he was nominated as an associate justice to the Warren Court by Lyndon B. Johnson where he carried on his work. In the Rehnquist Court, we had Ruth Bader Ginsburg. Ginsburg started out as a women's right advocate. She was called the Thurgood Marshall of the women's right movement. She was a leading minority voice in the court.

Today, we have Sonia Sotomayor, Elana Kegan and Ketanji Brown Jackson. They are the lone voices against the right-wing shift fighting with their backs against the wall. The lesson for conservatives was Justice William Brennan's 'Rule of Five': If you have five votes here, you can do anything.

The right-wing agenda in the US Supreme Court

When the right-wing controls the court, agendas that they want to promote are set. During confirmation by the Senate, questions are put to the nominees about their views. Many a nominee has been declined confirmation because their views are not in conformity with the views of the right-wing.

First on the list was the overturning of Roe versus Wade; followed by limiting the Voting Rights Act, 1965. The agenda also includes attacking affirmative action referred to, dismissively, as 'racial balancing', including racial set-asides and other race-conscious public policies.

Extending the Second Amendment (the right to bear arms), mandatory death penalty for crimes like first-degree murder and strengthening the 'free exercise clause' (First Amendment) which protects citizens' right to practice their religion as they please is also part of the agenda on which the right-wing questions Supreme Court nominees.

Some of the other items on this agenda include diluting and undermining trade unions and workers' rights; gay rights and the Civil Rights Act, 1964, which forbids racial discrimination in employment.

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In June of 2022, Roe versus Wade was officially reversed. Writing for the majority, Justice Samuel Alito, one of the most conservative of the justices, said that the 1973 Roe ruling and repeated subsequent high court decisions reaffirming Roe "must be overruled" because they were "egregiously wrong", the arguments "exceptionally weak" and so damaging that they amounted to "an abuse of judicial authority".

This ruling has led to the closure of abortion clinics, death by illegal abortions in the back lanes of cities, unwanted pregnancies and unwed single mothers. The most affected are the Blacks.

Let us wind back to the year 2000. While Roe was about abortion, Bush versus Gore was about elections. In Bush, the court came around a full circle. Constitutional law had become the continuation of politics by other means.

In the case, Justice John Paul Stevens' dissent drove home the point, "Although we may never know with complete certainty the identity of the winner of this presidential elections, the identity of the loser is perfectly clear."

The US Constitution provides the House of Representatives the final word on presidential elections. The court has no role but chose to ignore the constitutional mandate of the House of Representatives. It decided in favour of Bush on a bogus rationale of equal protection.

Roe was based on substantive "due process", Bush on a dishonest view of 'equal protection'.

The most disingenuous part of the majority in Bush opinion was its jaw-dropping disclaimer. That the decision is "limited to present circumstances". Further, Justice Sandra Day O'Connor voted in favour of Bush because she wanted to retire during a Republican president's tenure.

To hell and…?

For most of American history, the 'right to bear arms' was not controversial. This was to change in the Roberts' Court. It was always understood, as David A. Kaplan explains in his book, that the Second "Amendment protected the collective, militia-based right, in the service of security".

The individual, on a reading of the Second Amendment, has no right to carry or bear arms. However, this was all to change. In District of Columbia versus Heller, the court declared that the amendment guaranteed an individual's right to keep a gun, at least "in defence of hearth and home".

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All this despite the gun violence in the US. The National Rifle Association (NRA), once led by the great Hollywood actor, Charlton Heston, was thrilled.

The case in Students for Fair Admissions, Inc. versus President & Fellows of Harvard College was as follows. At Harvard, each application for admission is initially screened by a 'first reader' who assigns a numerical score in each of the six categories: academic, extracurricular, athletic, school support, personal and overall.

The goal of the process is to ensure that there is no 'dramatic drop-off' in minority admissions from the prior class. Students for Fair Admissions, the petitioner, filed separate lawsuits against Harvard and the University of North Carolina, arguing that their race-based admissions programmes violate, respectively, Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

The majority opinion, written by Roberts, stated that the use of race was not a compelling interest, and the means by which the schools attempted to achieve diversity (tracking bare racial statistics) bore little or no relationship to the purported goals (viewpoint and intellectual diversity, and developing a diverse future leadership).

It was noted, however, that this prohibition on the use of race in deciding who would be accepted did not stop universities from considering a student's discussion of how their race has impacted their life "so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university."

In the majority opinion, Justice Roberts wrote that the Equal Protection Clause of the Fourteenth Amendment applies "without regard to any difference of race, of colour or of nationality" and thus must apply to every person.

As such, "eliminating racial discrimination means eliminating all of it", adding, "For the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another colour."

Roberts wrote that the affirmative action programmes "lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping and lack meaningful end-points. We have never permitted admissions programmes to work in that way, and we will not do so today".

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This judgment overruled Regents of the University of California versus Bakke, which had held for decades that, "Affirmative action programmes that take race into account can continue to play a role in the college admissions process, since creating a diverse classroom environment is a compelling State interest under the Fourteenth Amendment. State universities go too far, however, when they set a certain quota for the number of minority students who enrol."

The Roberts Court went on to support Trump's travel ban on Muslims and the State's attempt at gerrymandering of counties where Blacks, Latinos and poor Whites, the main support base of the Democratic party, are in a majority.

Voting rights were diluted wherever it was made possible to strike voters off rolls, change ID requirements to register, etc., using the same techniques that were prevalent in the Jim Crow era, as detailed in Carol Anderson's One Person, No Vote.

In Janus versus American Federation of State County and Municipal Employees Council, workers' rights were diluted. This was a case where non-union members were required to pay an agency fee to the labour unions; the reason being that in any negotiated settlement, non-union members too benefited.

Justice Alito disagreed and said agency fees violated the First Amendment: the non-members of a union were being forced to subsidise the speech of others! The court used the commerce clause to control Congress' radicalism.

The Rehnquist court outlawed the popular Gun-Free School Act, 1990 and Parts of the Violence Against Women Act, 1994 as being against the commerce clause.

The court uses the commerce clause to strike down social security legislations, minimum wages acts and membership of unions.

Once upon a time, the exemplar of judicial deference— Oliver Wendell Holmes Jr.— wrote to his British friend, Harold Laski: "If my fellow citizens want to go to hell, I'll help them. It's my job."

Holmes was right, even if hell was not the optimal destination.