Sunstein Sees Supreme Court Revolution

Supreme Court Revolution Barely Stirs Any Notice
Cass R. Sunstein
USA Today
September 14, 2005

In the past 25 years, the nation has witnessed fundamental ideological changes in the Supreme Court. To understand the current debate, it is important to appreciate those changes.

To see what has happened, let's try a little science fiction. Imagine, if you will, a Supreme Court that, in the next quarter-century, has shifted radically to the left.

Imagine that by 2030, Justices Antonin Scalia and Clarence Thomas have resigned, and their successors are much more liberal than anyone serving on the court in 2005. The new justices believe that the death penalty is always unconstitutional. They argue that the Constitution creates a right to education and very possibly to welfare and housing as well.

Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer continue to serve on this imaginary court, and Justice John Paul Stevens has been replaced with someone who thinks very much as he did. But all four justices, once taken to be the court's "liberal wing," are characterized in 2030 as moderates or even as conservatives.

Justice Anthony Kennedy has been succeeded by someone who is far to his left. President Bush's other nominee, Jane Doe, has proved to be a centrist.

Chief Justice John Roberts remains on the court, but he is now its only reliably conservative member. For that reason, he is referred to as the Lone Ranger.

Seem implausible?

Does this Supreme Court of 2030 seem utterly fantastic and unimaginable -- a conservative's worst nightmare, a liberal's wildest dream? If so, think again. The court just described is no fantasy. In essence, it is the Supreme Court of 1980.

That court consisted of Chief Justice Warren Burger and Justices Thurgood Marshall, William Brennan, Harry Blackmun, Lewis Powell, Byron White, Stevens, Potter Stewart, and William Rehnquist (once known as the Lone Ranger).

Astonishing but true: The court of 1980, so far to the left of the court of 2005, was often described as a conservative court. After all, it included five Republican appointees (Powell, Burger, Rehnquist, Stevens and Stewart) who generally rejected the liberal activism of their predecessors on the Warren Court.

The simple lesson is that the Supreme Court has been massively transformed in the past 25 years, above all because of the determined efforts of Republican Presidents Ronald Reagan and George H.W. Bush.

Some conservatives complain that the federal judiciary is the only branch of the national government that they do not yet "own." But an understanding of the change from 1980 to 2005 reveals a remarkable triumph for the conservative movement in the United States.

Conservative swing

Justices Kennedy and Sandra Day O'Connor have frequently been described as the "moderates" on the Rehnquist Court -- even though their views on key issues, such as states' rights, are far more conservative than those of Powell and White, the distinguished moderates on the Burger Court.

Justices Souter and Stevens, both Republican appointees, are often described as "liberals" -- even though their general views are close to those of two highly respected centrists on the Burger Court, Justices Powell and, well, Stevens.

In short, the conservative victory has changed the very terms of legal and political discourse. On the Supreme Court, what was once centrist is now left-wing. What was once conservative is now centrist. What was once on the extreme right is now merely conservative. What was once on the left no longer exists.

Of course, many conservatives want a lot more; they seek even larger changes in constitutional law, and they hope that new appointees will help to produce those changes.

Many liberals want to preserve the status quo, and they hope that new appointees will insist on stability in the law.

What both sides miss is that in the past 25 years, the nation has experienced a genuine revolution in constitutional thinking.

What makes this particular revolution so unusual, and so stunningly successful, is that we have barely noticed it.

 

Cass R. Sunstein teaches at the University of Chicago Law School and is author of Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America.

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