Friday, March 25, 2016

What Difference Would It Make If Liberals Controlled the Supreme Court? -

 What Difference Would It Make If Liberals Controlled the Supreme Court? -

by Steve Shiffrin (Cornell Law School)

With the passing of Justice Scalia, and with the nomination of a centrist judge who probably will not be confirmed, we should ask what difference it would make a newly elected Democratic President appointed a liberal judge creating a liberal majority on the Court. Most recognize that the general trend of decisions by the Court in which Justice Scalia played an important role would be quite different than they are now. 

That Court undermined health, safety, and environmental regulations and otherwise acted in ways celebrated by the Chamber of Commerce. It overturned the Voting Rights Act, and it upheld state regulations designed to make it more difficult for Democrats to vote. It used the First Amendment to overturn campaign finance regulations and was on the verge of using the same amendment to weaken unions. The Court smothered dissent: upholding bureaucrats who sought to censor the speech of public employees, students, and prisoners. The Court weakened affirmative action programs and upheld attempts to burden the process of securing an abortion. The Court supported gun rights in the home and to some extent outside the home. And it gave stingy interpretations of our Fourth, Fifth, and Sixth Amendment rights.

I would expect a liberal Court to reverse these trends, overruling cases or reading them narrowly. But there is more. It takes four justices to vote to hear a case. Liberal Justices on a conservative Court will not vote to hear a case that would permit the conservatives to create a bad precedent. If the liberals controlled the Court, the agenda of the Court would look very different.

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