The Secret to Swaying the Supreme Court

The court’s gone conservative. But there’s pretty clear evidence that public pressure can make a difference.
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A conservative majority is locked in place at the U.S. Supreme Court, most likely for a decade or two. But that doesn’t have to be the end of the world for liberal activists.

YES! Illustration. Photo by Doug Mills-Pool and RobinOlimb/Getty Images

A conservative majority is locked in place at the U.S. Supreme Court, most likely for a decade or two. But that doesn’t have to be the end of the world for liberal activists. Or even the end of civil rights. History shows us the tactic that can work: grassroots pressure for change.

For most of this country’s history, fights for social change have happened under a conservative court. There was a sliver of time, from the 1930s to the mid-1960s, when real people—people of color, labor, the accused—got pretty much a fair shake from the Supreme Court. But that era was not much more than 10 percent of the court’s existence.

For most of the court’s existence, its decisions on the rights of everyday people tended more toward the notorious than the notable.

Given the opportunity to strike a blow against slavery, the court delivered Dred Scott. When it could have enforced the 14th Amendment’s promise of due process and equal protection for all citizens, it worked overtime to say the amendment was surely meant to protect vulnerable corporations. When it could have shut down Jim Crow, it offered Plessy v. Ferguson. And when workers were unionizing and improving working conditions, the court in 1905 came up with Lochner, which said state worker-safety laws violated workers’ constitutional right to agree to work as many hours and under as dangerous conditions as they wanted.

The fate of Lochner illustrates one reason despair about the Supreme Court may be premature. In the depths of the Great Depression, and faced with President Franklin ­Roosevelt’s landslide re-election, increasingly powerful unions, and general unrest, one Supreme Court justice simply changed his mind about what the federal government was permitted to do, and that was the end of Lochner. (The chief justice unsurprisingly claimed that politics had nothing to do with it.)

Regardless of its own mythology about how it deals purely in abstract law, the court does respond both to political pressure and cultural change. It can rule differently than the court’s left-or-right makeup suggests.

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In 1973, 20 states had legalized abortion in at least some cases; that was part of the background for the otherwise conservative Burger Court’s decision in Roe v. Wade. Just three years ago, in the face of a tide of public opinion and legalization in multiple states, the Roberts Court, never remotely liberal, declared in Obergefell v. Hodges that same-sex marriage is constitutionally guaranteed. And Chief Justice John Roberts surprised a lot of analysts when he joined the liberal minority in the 5-4 decision that saved the by-then popular Affordable Care Act. In all these cases, it was clear that there would be public outcry if the court ruled other than it did.

In none of those cases did the Supreme Court conjure rights from whole cloth. The cases came before the court because change was already underway. There’s pretty clear evidence that, when a case could go either way, current cultural realities—the values communicated from broad grassroots pressure—play a part in the court’s decisions.

But the court can get it wrong in the face of public silence. For Korematsu, the 6-3 case that upheld Japanese internment, the court was made up of eight FDR appointees (the lone Hoover holdover dissented). Most telling, just 10 years later, four members of the Korematsu majority joined the unanimous decision in Brown v. Board of Education. It’s difficult to believe that, had the public reacted to Japanese internment as it did to Trump’s Muslim ban, Korematsu would have been upheld.

There’s some hope too that things aren’t as tied up as they seem. The current panic is over Trump’s two appointments. Both Neil Gorsuch and Brett Kavanaugh have spent their adult lives in the world of the Federalist Society, a far-right organization with a strong libertarian streak—rather like Justice Anthony Kennedy.

We’ll know soon enough. But there’s a better-than-zero chance that one of them might turn into a Kennedy-style swing vote on individual rights. Were that to happen, it’s still pretty much the Obergefell court.

One thing is certain. If we give up pushing for change because the Supreme Court’s gone conservative, the next time a close case comes up, the court will maintain the status quo. If it’s clear that there’s been a cultural shift, the court may reflect it. But it’s up to us to make that clear.