Thinking About an Agenda for a New Supreme Court, Part I

By Mark Tushnet

Suppose that a Democratic president makes a “relevant” appointment to the Supreme Court – that is, a replacement for one of the Court’s conservative justices (among whom I include Justice Kennedy). What can progressive scholars and activists say about the new Court’s agenda?

Some immediate qualifications:  You shouldn’t think that the President will name and the Senate confirm someone who has exactly the agenda you’d like. The pool of potential nominees is already mostly set, and consists of mostly reasonably conventional lawyers. So, don’t think “creatively” about who would be named. Instead, think about what’s likely to be realistically achievable with a Court consisting of five more or less standard Democratic-nominated justices.

Second, don’t think that you’re going to be able to control the issues presented to the Court. You’ll have your ideas about the new Court’s agenda, but lawyers all over the country will have their ideas and, more important, they’ll have clients who might find advantages in pursuing lines of argument that you think mistaken or cases that you think marginal to a progressive agenda. This point is especially important in connection with thinking about designing a long-term litigation campaign aimed at using incremental changes in the law to reach some larger goal. You might think that one specific case or type of case should precede another, but you can’t control the course of litigation.

Third, I’m interested here in a short-to-middle term agenda. I’m all in favor of scholars and lawyers thinking in utopian terms about how the Constitution can properly be interpreted to require substantially greater income and wealth equality than we see in the United States today, and about many other things that would be part of my ideal constitution and could be part of ours. That’s not a realistic agenda in the short-to-middle term, which isn’t to say that it’s not worth thinking about – it’s just not the project I’m interested in at the moment.

With those qualifications in mind, I’ll turn to “my” agenda. Talking with progressive legal activists, I’ve been struck – through perhaps I shouldn’t have been – by how prominent the idea of overruling recent decisions is: Shelby County and Citizens United in particular, but a bunch of others. Here I’ll sketch some of the questions that would arise with “overrulings” as an important part of the agenda.

I don’t think that coming up with a “theory of overruling” is all that difficult. During almost every period of transition between one Court to another, adherents to the “old” Court will criticize the new one for overruling decisions without justification. By now, though, we have a bunch of theories of overruling: the most useful is the “wrong the day it was decided” theory, but “it’s proven unworkable in practice” is pretty good.

Both of those theories work for the current law of campaign finance regulation. Note that I don’t say “Citizens United,” because the real problem isn’t Citizens United but the entire approach the Court’s taken since Buckley v. Valeo. Buckley set the Court on a path that leaves avoiding corruption as the only permissible goal of campaign finance regulation. The effect has been that progressives have tried to be creative in defining corruption, as in Larry Lessig’s and Zephyr Teachout’s work. There’s nothing wrong with that, but it’s been easy for adherents to the current approach to say that those alternatives are using “corruption” as a metaphor for something else – basically, for reducing campaign expenditures and moving in the direction of greater equality in campaign expenditures, — and that those are impermissible goals. So, I think, people who are interested in defending campaign finance regulation should say that the limitation of permissible goals to avoiding corruption was wrong the day it was adopted, and has led to a system of constitutional rules that is impossible to administer in a coherent way. Vehicles for doing that will present themselves readily – essentially, any campaign finance case is such a vehicle, because the problem arises in the foundations of current law.

Shelby County is a much harder case to overrule. Try to think of a litigation vehicle for doing so. I can imagine, just barely, an extremely aggressive and media-savvy Department of Justice filing a suit against a jurisdiction covered by the trigger provision invalidated in Shelby County, saying that it’s doing so solely for the purpose of producing a lawsuit in which Shelby County could be overruled, not in defiance of the Supreme Court. That could be bolstered by saying that the executive branch has an independent obligation to interpret the Constitution. This would be an extremely hard sell, I think. I’m sure there’d be resistance within the Department of Justice to filing such a suit, and media criticism would be pretty severe (which is why I said the Department would have to be media savvy). So, a direct challenge to Shelby County seems difficult to structure. Maybe there would be other cases that would give the Court’s new justice a chance to say that she thought Shelby County was wrongly decided and should be overruled (much in the way justices indicated that they thought that the Court’s first case upholding a requirement that Jehovah’s Witnesses salute the flag was wrongly decided, inviting a direct challenge, which came quite soon). But, even then, it’s hard to see how the “trigger” provision could be revived in any realistically imaginable litigation.

There are other decisions on the “to be overruled” list for progressives, but overruling them might actually not be necessary. An obvious candidate is Wal-Mart, and there the strategy is pretty simple, and doesn’t require coordinated litigation. Lower courts will invoke Wal-Mart to deny class status, and all the new Court has to do is to say, repeatedly, that the lower courts have applied Wal-Mart more stringently than they should have. Eventually, it might be appropriate to overrule Wal-Mart expressly, but a great deal can be accomplished simply by eroding it.

In subsequent posts, I’ll discuss other items that might be on the agenda of a new Supreme Court.