{"id":1549,"date":"2015-01-20T01:42:53","date_gmt":"2015-01-20T06:42:53","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hlpr\/?p=1549"},"modified":"2015-10-02T15:20:25","modified_gmt":"2015-10-02T15:20:25","slug":"thinking-about-an-agenda-for-a-new-supreme-court-part-i","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2015\/01\/20\/thinking-about-an-agenda-for-a-new-supreme-court-part-i\/","title":{"rendered":"Thinking About an Agenda for a New Supreme Court, Part I"},"content":{"rendered":"

By Mark Tushnet<\/em><\/p>\n

Suppose that a Democratic president makes a \u201crelevant\u201d appointment to the Supreme Court \u2013 that is, a replacement for one of the Court\u2019s conservative justices (among whom I include Justice Kennedy). What can progressive scholars and activists say about the new Court\u2019s agenda?<\/p>\n

Some immediate qualifications:\u00a0 You shouldn\u2019t think that the President will name and the Senate confirm someone who has exactly the agenda you\u2019d like. The pool of potential nominees is already mostly set, and consists of mostly reasonably conventional lawyers. So, don\u2019t think \u201ccreatively\u201d about who<\/em> would be named. Instead, think about what\u2019s likely to be realistically achievable with a Court consisting of five more or less standard Democratic-nominated justices.<\/p>\n

Second, don\u2019t think that you\u2019re going to be able to control the issues presented to the Court. You\u2019ll have your ideas about the new Court\u2019s agenda, but lawyers all over the country will have their ideas and, more important, they\u2019ll 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\u2019t control the course of litigation.<\/p>\n

<\/p>\n

Third, I\u2019m interested here in a short-to-middle term agenda. I\u2019m 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\u2019s not a realistic agenda in the short-to-middle term, which isn\u2019t to say that it\u2019s not worth thinking about \u2013 it\u2019s just not the project I\u2019m interested in at the moment.<\/p>\n

With those qualifications in mind, I\u2019ll turn to \u201cmy\u201d agenda. Talking with progressive legal activists, I\u2019ve been struck \u2013 through perhaps I shouldn\u2019t have been \u2013 by how prominent the idea of overruling recent decisions is: Shelby County<\/em><\/a> and Citizens United<\/em><\/a> in particular, but a bunch of others. Here I\u2019ll sketch some of the questions that would arise with \u201coverrulings\u201d as an important part of the agenda.<\/p>\n

I don\u2019t think that coming up with a \u201ctheory of overruling\u201d is all that difficult. During almost every period of transition between one Court to another, adherents to the \u201cold\u201d 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 \u201cwrong the day it was decided\u201d theory, but \u201cit\u2019s proven unworkable in practice\u201d is pretty good.<\/p>\n

Both of those theories work for the current law of campaign finance regulation. Note that I don\u2019t say \u201cCitizens United<\/em>,\u201d because the real problem isn\u2019t Citizens United<\/em> but the entire approach the Court\u2019s taken since Buckley v. Valeo<\/em>. Buckley <\/em>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\u2019s and Zephyr Teachout\u2019s work. There\u2019s nothing wrong with that, but it\u2019s been easy for adherents to the current approach to say that those alternatives are using \u201ccorruption\u201d as a metaphor for something else \u2013 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 \u2013 essentially, any<\/em> campaign finance case is such a vehicle, because the problem arises in the foundations of current law.<\/p>\n

Shelby County<\/em> 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<\/em>, saying that it\u2019s doing so solely for the purpose of producing a lawsuit in which Shelby County<\/em> 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\u2019m sure there\u2019d 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<\/em> seems difficult to structure. Maybe there would be other cases that would give the Court\u2019s new justice a chance to say that she thought Shelby County<\/em> was wrongly decided and should be overruled (much in the way justices indicated that they thought that the Court\u2019s first case upholding a requirement that Jehovah\u2019s Witnesses salute the flag was wrongly decided, inviting a direct challenge, which came quite soon). But, even then, it\u2019s hard to see how the \u201ctrigger\u201d provision could be revived in any realistically imaginable litigation.<\/p>\n

There are other decisions on the \u201cto be overruled\u201d list for progressives, but overruling them might actually not be necessary. An obvious candidate is Wal-Mart<\/em><\/a>, and there the strategy is pretty simple, and doesn\u2019t require coordinated litigation. Lower courts will invoke Wal-Mart<\/em> to deny class status, and all the new Court has to do is to say, repeatedly, that the lower courts have applied Wal-Mart<\/em> more stringently than they should have. Eventually, it might be appropriate to overrule Wal-Mart<\/em> expressly, but a great deal can be accomplished simply by eroding it.<\/p>\n

In subsequent posts, I\u2019ll discuss other items that might be on the agenda of a new Supreme Court.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Mark Tushnet Suppose that a Democratic president makes a \u201crelevant\u201d appointment to the Supreme Court \u2013 that is, a […]<\/p>\n","protected":false},"author":3,"featured_media":1551,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[32,161,176,203],"class_list":["post-1549","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-blog","tag-citizens-united","tag-shelby-county","tag-supreme-court-agenda","tag-wal-mart"],"jetpack_featured_media_url":"https:\/\/journals.law.harvard.edu\/lpr\/wp-content\/uploads\/sites\/89\/2015\/01\/file0006196635001.jpg","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-oZ","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1549","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1549"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1549\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media\/1551"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1549"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1549"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1549"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}