A Supreme Shift: How a Liberal Court Could Reshape America - OZY | A Modern Media Company

A Supreme Shift: How a Liberal Court Could Reshape America

A Supreme Shift: How a Liberal Court Could Reshape America

By Sean Braswell


Because the Supreme Court can influence the other branches of government in ways that aren’t always apparent.

By Sean Braswell

It’s been called the most important footnote in U.S. constitutional law — and for good reason. In the famous (among lawyers and law students, at least) “footnote four” of its 1938 decision in United States v. Carolene Products Co., the U.S. Supreme Court first opened the possibility of applying heightened scrutiny to laws targeting “discrete and insular minorities.” It was just a caveat, an aside in an opinion about the regulation of milk shipping. But the notion that the court, normally highly deferential to the political branches, could take a hard look at — and even intervene — in cases where a law threatened the democratic process and the rights of marginalized groups was a powerful one, and it would help define the court’s mission for a generation.

The greatest legacy of a Clinton court could be one that reforms America’s political process.

Following several decades of conservative rule, the court has rolled back that legacy by bolstering the role of money in politics, striking down critical provisions of the Voting Rights Act and permitting rampant partisan gerrymandering. But the outcome of next month’s election could once again alter the composition and direction of the court for a generation, with the next president likely to have a chance to fill as many as four seats. Should the result be Hillary Clinton and a Democratic Senate, as some predict might be the case, then we could be looking at a solid 6-3 liberal majority of the sort America has not seen in almost half a century.

A reconstituted court could have a major impact on hot-button issues like abortion, gay rights, gun reform and affirmative action. Yet the most significant issues that don’t get as much attention may be those related to the electoral process itself, including campaign finance and voting rights. Indeed, the greatest legacy of a Clinton court could be one that helps Democrats electorally for decades to come. The court’s current liberal justices, as Lincoln Caplan, a senior research scholar at Yale Law School, tells OZY, all seem to subscribe to the tenets of fairness laid out in Carolene Products. Given that inclination, not to mention America’s broken and fractured political system, it’s not hard to imagine that a President Clinton “could nominate justices willing to rewrite the political rules,” says Northeastern University professor Daniel Urman.

Since the court’s 2010 decision in Citizens United v. FEC, which banned restrictions on corporate and organizational spending on independent campaign activities, a flood of new money, largely from super PACs, has poured into U.S. elections. According to to the Brennan Center for Justice, nearly 60 percent of the $1 billion spent on federal elections by super PACs since 2010 came from just 195 individuals and their spouses. Overall, conservative groups have dominated the spending spree with notable exceptions including Clinton’s super-PAC-fueled 2016 campaign.


Most legal scholars remain skeptical that a liberal court would overturn Citizens United outright, which builds on a quarter century of precedent. But it could substantially undercut its impact by both broadening the decision’s narrow “quid pro quo” definition of political corruption as well as scrutinizing more carefully whether such campaign expenditures are truly “independent,” and, in doing so, signal to Congress and state legislature that they will have more latitude in passing more stringent campaign finance regulations.

Sure, both major U.S. political parties have been guilty of gerrymandering. But the GOP has been far more successful at it in recent years, resulting in an extra 11.5 Republican congressional seats, according to one 2013 study. “The way we draw our congressional districts is an incredible threat to democracy,” says Urman. And since the court has yet to articulate a clear standard to address the drawing of such districts, we can look for a liberal court to likely intervene to police partisan gerrymandering.

While Democrats aren’t putting all of their electoral eggs in the court’s basket, they have already started moving toward building their own Koch-style campaign fundraising machines, not to mention an Obama-led redistricting effort, to take better advantage of the current legal landscape. And, as Caplan points out, it’s highly unlikely a liberal-led court is going to measure its own goals or success in addressing these issues in terms of crudely partisan electoral outcomes. 

Though it may take years for the consequences of such court action to be felt, the downstream consequences could be significant, particularly for Democrats, who would benefit at the polls from the reduced influence of big money in politics — making it easier to vote and enjoying a curtailment of gerrymandering. Long-sought comprehensive immigration reform could also get its biggest push simply from redrawing lines in a more balanced way. Indeed, elections have consequences, and 2016 is looking like one of those super-elections that could change the course of American politics for a long time.

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