tag:theconversation.com,2011:/ca-fr/topics/anthony-kennedy-14669/articlesAnthony Kennedy – La Conversation2023-01-31T19:31:26Ztag:theconversation.com,2011:article/1972672023-01-31T19:31:26Z2023-01-31T19:31:26ZGeorge Santos: A democracy can’t easily penalize lies by politicians<figure><img src="https://images.theconversation.com/files/505662/original/file-20230120-8189-npl0d8.jpeg?ixlib=rb-1.1.0&rect=17%2C17%2C5973%2C3970&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">George Santos, in the middle, lied his way to winning election to Congress, where he took the oath of office on Jan. 7, 2023.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXCongress/5e8adfe786f4483295cda7d93dcf20c8/photo?Query=George%20Santos&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=104&currentItemNo=15">AP Photo/Alex Brandon</a></span></figcaption></figure><p>George Santos is not the first politician to have lied, but <a href="https://nymag.com/intelligencer/2023/01/the-everything-guide-to-george-santoss-lies.html">the fables he told to get elected</a> to Congress may be in a class by themselves. Historian Sean Wilentz remarked that while embellishments happen, Santos’ lies are different – “<a href="https://www.vox.com/policy-and-politics/2023/1/24/23569138/george-santos-scandal-lies">there is no example like it” in American history, Wilentz told Vox in a late-January, 2023, story</a>.</p>
<p>Columnist <a href="https://www.wsj.com/articles/why-george-santos-lies-matter-new-york-house-gop-integrity-deception-fraud-voters-trust-11672347204">Peggy Noonan wrote</a> that Santos was “a stone cold liar who effectively committed election fraud.” </p>
<p>And now Santos has taken the dramatic step of removing himself temporarily from the committees he’s been assigned to: the House Small Business Committee and the Science, Space and Technology Committee. The <a href="https://www.washingtonpost.com/politics/2023/01/31/santos-fabrications-committee-assignments-republicans/">Washington Post reports</a> Santos told his GOP colleagues that he would be a “distraction” until cleared in several probes of his lies.</p>
<p>While Santos’ lies got some attention from local media, they did not become widely known until <a href="https://www.nytimes.com/2022/12/19/nyregion/george-santos-ny-republicans.html">The New York Times published an exposé</a> after his election. </p>
<p>Santos’ lies may have gotten him into hot water with the voters who put him in the House, and a few of his colleagues, including the New York <a href="https://people.com/politics/new-york-republicans-call-on-george-santos-to-resign/">GOP, want him to resign</a>. <a href="https://www.cbsnews.com/newyork/news/george-santos-federal-investigation/">CBS News reported</a> that federal investigators are looking at Santos’ finances and financial disclosures.</p>
<p>But the bulk of Santos’ misrepresentations may be protected by the <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a>. The U.S. Supreme Court has concluded that lies enjoy First Amendment protection – not because of their value, but because the government cannot be trusted with the power to regulate lies. </p>
<p>In other words, lies are protected by the First Amendment to safeguard democracy. </p>
<p>So how can unwitting voters be protected from sending a fraud to Congress? </p>
<p>Any attempt to craft a law aimed at the lies in politics will run into practical enforcement problems. And attempts to regulate such lies could collide with a 2012 Supreme Court case <a href="https://www.oyez.org/cases/2011/11-210">United States v. Alvarez</a>. </p>
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<a href="https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large, columned white building at the top of a grand, white set of stairs." src="https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The U.S. Supreme Court has ruled that some false statements are ‘inevitable if there is to be open and vigorous expression of views.’</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtDisabilitiesEducation/c46b6b0bf6ab45a4b6600360efe3083c/photo?Query=U.S.%20Supreme%20Court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=8325&currentItemNo=19">AP Photo/Manuel Balce Ceneta, File</a></span>
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<h2>Lies and the First Amendment</h2>
<p>Xavier Alvarez was a fabulist and a member of a public water board who <a href="https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-us-v-alvarez">lied about having received the Congressional Medal of Honor</a> in a public meeting. He was charged in 2007 with violating the <a href="https://www.govtrack.us/congress/bills/109/s1998">Stolen Valor Act</a>, which made it a federal crime to lie about having received a military medal. </p>
<p>The Supreme Court rejected the government’s argument that lies should not be protected by the First Amendment. The court concluded that lies are protected by the First Amendment unless there is a legally recognized harm, such as defamation or fraud, associated with the lie. So the Stolen Valor Act was struck down as an unconstitutional restriction on speech. The court pointed out that some false statements are “inevitable if there is to be open and vigorous expression of views in public and private conversation.” </p>
<p>Crucially, the court feared that the power to criminalize lies could damage American democracy. The court reasoned that unless the First Amendment limits the power of the government to criminalize lies, the government could establish an “endless list of subjects about which false statements are punishable.” </p>
<p>Justice Anthony Kennedy, <a href="https://supreme.justia.com/cases/federal/us/567/709/#tab-opinion-1970529">who wrote the majority opinion</a> in Alvarez, illustrated this danger by citing <a href="https://www.george-orwell.org/1984">George Orwell’s dystopian novel “1984</a>,” in which a totalitarian government relied on a Ministry of Truth to criminalize dissent. Our constitutional tradition, he wrote, “stands against the idea that we need” a Ministry of Truth.</p>
<h2>Lies, politics and social media</h2>
<p>George Santos, unlike Xavier Alvarez, <a href="https://www.forbes.com/sites/saradorn/2023/01/18/george-santos-mom-wasnt-in-new-york-on-911-report-says-heres-the-full-list-of-his-lies/?sh=7e6598a46ce6">lied during an election campaign</a>.</p>
<p>In Alvarez, the Supreme Court expressed concern about laws criminalizing lies in politics. It warned that the Stolen Valor Act applied to “political contexts, where although such lies are more likely to cause harm,” the risk that prosecutors would bring charges for ideological reasons was also high. </p>
<p>The court believed that the marketplace of ideas was a more effective and less dangerous mechanism for policing lies, particularly in politics. Politicians and journalists have the incentives and the resources to examine the records of candidates such as Santos to uncover and expose falsehoods. </p>
<p>The story of George Santos, though, is a cautionary tale for those who hold an idealized view of how the marketplace of ideas operates in contemporary American politics. </p>
<p>Democracy has not had a long run when measured against the course of human history. From the founding of the American republic in the late 18th century <a href="https://www.pennpress.org/9780812250848/democracy-and-truth/">until the advent of the modern era</a>, there was a rough division of labor. Citizens selected leaders, and experts played a critical gatekeeping role, mediating the flow of information. </p>
<p>New information technologies have largely <a href="https://press.princeton.edu/books/paperback/9780691180908/republic">displaced the role of experts</a>. Everyone now claims to be an expert who can decide for themselves whether COVID-19 vaccines are effective or who really won the 2020 presidential election. These technologies <a href="https://news.un.org/en/story/2022/03/1113702">have also destroyed the economic model</a> that once sustained local newspapers. </p>
<p>Thus, <a href="https://www.pbs.org/newshour/show/small-local-paper-uncovered-and-reported-george-santos-scandal-before-november-election">although one local newspaper did report on Santos’ misrepresentations</a>, his election is evidence that the loss of news reporting jobs has damaged America’s democracy. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/505665/original/file-20230120-14-rrx667.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A piece of newspaper, burning up" src="https://images.theconversation.com/files/505665/original/file-20230120-14-rrx667.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505665/original/file-20230120-14-rrx667.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=483&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505665/original/file-20230120-14-rrx667.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=483&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505665/original/file-20230120-14-rrx667.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=483&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505665/original/file-20230120-14-rrx667.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=607&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505665/original/file-20230120-14-rrx667.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=607&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505665/original/file-20230120-14-rrx667.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=607&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">With the news business in serious decline, citizens don’t get the information they need to be informed voters.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/burning-headlines-as-newspaper-catches-fire-royalty-free-image/1396098618?phrase=journalism%20decline&adppopup=true">iStock / Getty Images Plus</a></span>
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<h2>Lies that harm democracy</h2>
<p>The election of George Santos illustrates the challenges facing American democracy. The First Amendment was written in an era when government censorship was the principal danger to self-government. Today, politicians and ordinary citizens can harness <a href="https://constitutionalstudies.wisc.edu/index.php/cs/article/view/73">new information technologies to spread misinformation and deepen polarization</a>. A weakened news media will fail to police those assertions, or a partisan news media will amplify them. </p>
<p>As a <a href="https://scholar.google.com/citations?user=aIWyIH8AAAAJ&hl=en">scholar of constitutional law, comparative constitutionalism, democracy and authoritarianism</a>, I believe that Justice Kennedy’s Alvarez opinion relied on a flawed understanding of the dangers facing democracy. He maintained that government regulation of speech is a greater threat to democracy than are lies. Laws that targeted lies would have to survive the most exacting scrutiny – which is nearly always fatal to government regulation of speech.</p>
<p><a href="https://supreme.justia.com/cases/federal/us/567/709/">Justice Stephen Breyer’s concurring opinion</a> argued that a different test should be used. Courts, Breyer said, should assess any speech-related harm that might flow from the law as well as the importance of the government objective and whether the law furthers that objective. This is known as intermediate scrutiny or proportionality analysis. It is a form of analysis that is widely used by <a href="https://scholarship.law.columbia.edu/books/302/">constitutional courts in other democracies</a>. </p>
<p>Intermediate scrutiny or proportionality analysis does not treat all government regulations of speech as presumptively unconstitutional. It forces courts to balance the value of the speech against the justifications for the law in question. That is the right test, Justice Breyer concluded, when assessing laws that penalize “false statements about easily verifiable facts.”</p>
<p>The two approaches will lead to different results when governments seek to regulate lies. Even proposed, narrowly written laws aimed at factual misrepresentations by politicians about <a href="https://www.newsweek.com/congressmans-santos-bill-aims-ban-obvious-candidates-who-lie-1770285">their records</a> or <a href="https://www.seattletimes.com/seattle-news/politics/in-testimony-wa-gov-inslee-says-bill-on-lying-about-election-results-written-to-protect-the-first-amendment/">about who won an election</a> might not survive the high degree of protection afforded lies in the United States.</p>
<p>Intermediate scrutiny or proportionality analysis, on the other hand, will likely enable some government regulation of lies – including those of the next George Santos – to survive legal challenge.</p>
<p>Democracies have a better long-term survival track record than dictatorships because they can and do <a href="https://press.princeton.edu/books/paperback/9780691178134/the-confidence-trap">evolve to deal with new dangers</a>. The success of America’s experiment in self-government may well hinge, I believe, on whether the country’s democracy can evolve to deal with new information technologies that help spread <a href="https://wwnorton.com/books/9780393357424">falsehoods that undermine democracy</a>.</p><img src="https://counter.theconversation.com/content/197267/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Miguel Schor does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When candidates can get elected to Congress based on a mountain of lies they’ve told, is it time to reconsider whether such lies are protected by the First Amendment?Miguel Schor, Professor of Law and Associate Director of the Drake University Constitutional Law Center, Drake UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1859412022-06-30T12:22:14Z2022-06-30T12:22:14ZThe Supreme Court has overturned precedent dozens of times, including striking down legal segregation and reversing Roe<figure><img src="https://images.theconversation.com/files/471441/original/file-20220628-25-syjzvz.jpg?ixlib=rb-1.1.0&rect=44%2C8%2C5946%2C3979&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A demonstrator outside the Supreme Court building expresses fear that other precedents will fall, too.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAbortion/8841875201f44dab855d8af3c9b24b5d/photo">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p>It is a central principle of law: Courts, including the Supreme Court, are supposed to follow earlier decisions – precedent – to resolve current disputes. But on rare occasions, Supreme Court justices conclude that one of the court’s past constitutional precedents has to go, so they overrule it. This is exactly what happened in <a href="https://www.law.cornell.edu/supremecourt/text/19-1392">Dobbs v. Jackson Women’s Health Organization</a>, when the court overturned <a href="https://www.law.cornell.edu/supremecourt/text/410/113">Roe v. Wade</a>, the 1973 ruling recognizing a constitutional right to abortion. </p>
<p>For years the court had been building up a <a href="https://www.e-elgar.com/shop/usd/constitutional-precedent-in-us-supreme-court-reasoning-9781839103124.html">theory of precedent reversal</a> that would justify overturning Roe, among other precedents it did not like, and the <a href="https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504">draft opinion</a> leaked in early 2022 foreshadowed this decision.</p>
<p>The justices who voted to overrule the Roe precedent provided the reasoning behind their decision to reverse a longstanding ruling and declare abortion rights are not protected by the U.S. Constitution. Their explanations also open up the possibility of more reversals of precedent in the future.</p>
<h2>Why precedent?</h2>
<p>Over the centuries, courts have stated many reasons they should adhere to precedent. First is the idea of equity or justice, under which “<a href="https://scholar.princeton.edu/sites/default/files/benjohnson/files/like_cases.pdf">like cases should be decided alike</a>.” If a court in the past reviewed a particular set of facts and decided a case in a specific way, fairness dictates it should decide another similar case the same way. Adhering to precedent <a href="http://www.nonpublication.com/schauer.htm">promotes uniformity and consistency</a> in the law.</p>
<p>In addition, precedent promotes judicial efficiency: Courts do not have to decide from scratch every time. They can look at similar cases from the past and base their reasoning on those decisions.</p>
<p>Finally, following precedent promotes predictability in the law and <a href="https://scholarlycommons.law.wlu.edu/wlulr/vol47/iss2/2/">protects people who have come to rely on past decisions as a guide for their behavior</a>. </p>
<h2>Reversing precedent is unusual</h2>
<p>The Supreme Court rarely overturns its past decisions or precedents. </p>
<p>In my book, “<a href="https://www.e-elgar.com/shop/usd/constitutional-precedent-in-us-supreme-court-reasoning-9781839103124.html">Constitutional Precedent in Supreme Court Reasoning</a>,” I point out that from 1789 to 2020, there were 25,544 Supreme Court opinions and judgments after oral arguments. The court has reversed its own constitutional precedents only 145 times – barely 0.5%.</p>
<p>The court’s historic periods are often characterized by who led it as chief justice. From 1953 until 2020, under the successive leadership of Chief Justices Earl Warren, Warren Burger, William Rehnquist and now John Roberts, the court overturned constitutional precedent 32, 32, 30 and 15 times, respectively. That is well under 1% of decisions handled during each period in the court’s history.</p>
<h2>When is precedent overturned?</h2>
<p>For most of its history, the court changed its mind only when it thought past precedent was unworkable or no longer viable, perhaps eroded by its subsequent opinions or by changing social conditions. In some cases, reversal happened when the court simply thought it got it wrong in the past.</p>
<p>Not all precedents are equal, and several current Supreme Court justices have in the past been open to overturning even long-standing rulings that interpret the Constitution.</p>
<p>Beginning with the Rehnquist court, justices became more willing to reject precedents they thought were badly reasoned, simply wrong or inconsistent with their own sense of the constitutional framers’ intentions. Justice <a href="https://www.law.cornell.edu/supremecourt/text/18-1323">Clarence Thomas</a> has taken this position on abortion. Justice Amy Coney Barrett, during her <a href="https://www.washingtonpost.com/podcasts/daily-202-big-idea/supreme-court-nominee-does-not-consider-roe-v-wade-a-super-precedent/">Senate confirmation hearing</a>, argued that Roe is not a so-called superprecedent, a decision so important or foundational that it cannot be overturned. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman speaks into a microphone" src="https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The newest Supreme Court justice, Amy Coney Barrett, signaled even before her confirmation that she was open to overturning Roe.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/McConnellCenter/cad821c05f154524a8e698ce26178bfa/photo">AP Photo/Timothy D. Easley</a></span>
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<p>Roberts has been willing to overturn settled law when he thinks the original opinion was not well argued. He did so in <a href="https://www.law.cornell.edu/supct/html/08-205.ZC.html">Citizens United</a>, a 2010 decision overturning two major campaign finance decisions, <a href="https://www.law.cornell.edu/supremecourt/text/494/652">Austin v. Michigan Chamber of Commerce</a> from 1989 and part of the 2003 <a href="https://www.law.cornell.edu/supct/html/02-1674.ZS.html">McConnell v. FEC</a> decision.</p>
<p>In 2020, Justices Neil Gorsuch and Brett Kavanaugh in <a href="https://www.law.cornell.edu/supremecourt/text/18-5924">Ramos v. Louisiana</a> went out of their way to explain and justify their views on when constitutional precedent may be overturned. They echoed Justice Samuel Alito’s discussion in 2018 in <a href="https://www.law.cornell.edu/supct/cert/16-1466">Janus v. American Federation of State, County, and Municipal Employees Council Number 31</a>. All three justices said constitutional precedent is merely a matter of court policy or discretion, more easily overturned than a precedent about a law. Sometimes, they said, constitutional precedents can be overruled if later judges view them as wrongly decided or reasoned.</p>
<p>All of these comments foreshadowed the Dobbs opinion.</p>
<h2>Reversing Roe v. Wade</h2>
<p>Roe v. Wade was an important precedent. In 1973, the Supreme Court ruled that women have a right to terminate their pregnancies. That right was reaffirmed in 1991 in <a href="https://www.law.cornell.edu/supremecourt/text/505/833">Planned Parenthood v. Casey</a>, with Justices Sandra Day O’Connor, Anthony Kennedy and David Souter noting that an entire generation of women came of age relying upon their right to control their bodies and terminate pregnancies in most circumstances. The justices said it would be wrong to upset that expectation, declaring “<a href="https://www.law.cornell.edu/supremecourt/text/505/833">An entire generation has come of age</a> free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.”</p>
<p>In the Dobbs decision, Alito, who wrote the majority opinion, said “<a href="https://www.law.cornell.edu/supremecourt/text/19-1392#writing-19-1392_OPINION_4">Roe and Casey must be overruled</a>.” His justification was that abortion rights are not mentioned in the Constitution, and protection of abortion rights is not “deeply rooted in this Nation’s history and tradition.” He also said Roe was not essential to the United States’ “scheme of ordered liberty” – or <a href="https://dictionary.findlaw.com/definition/ordered-liberty.html">sense of personal freedom</a>.</p>
<p>Alito also argued that Roe was “was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” </p>
<p>For Alito and the justices who joined his opinion – Thomas, Gorsuch, Kavanaugh and Barrett – the weakness and wrongness of the Roe decision simply outweighed the importance of the fact that women had relied on it for decades when making important personal decisions.</p>
<p>Kavanaugh wrote a concurring opinion that argued for reversing Roe for additional reasons. He wrote that the Constitution is silent on abortion – and therefore <a href="https://www.law.cornell.edu/supremecourt/text/19-1392#writing-19-1392_CONCUR_6">neutral on its constitutionality or unconstitutionality</a> – so the court should be silent also. He declared that Roe was “egregiously wrong” and said it “has caused significant negative jurisprudential or real-world consequences.”</p>
<p>Finally, and perhaps most dramatically, Thomas’ concurrence declared that not only was Roe wrong, but the entire idea of the court recognizing the existence of <a href="https://www.law.cornell.edu/supremecourt/text/19-1392#writing-19-1392_CONCUR_5">constitutional rights not explicitly found in the text</a> of the Constitution was flawed, an inappropriate expansion of rights that is known as <a href="https://www.law.cornell.edu/wex/substantive_due_process">substantive due process</a>. </p>
<p>Thomas called for the court to reconsider the 1964 decision on the right of any couple to <a href="https://www.oyez.org/cases/1964/496">use birth control</a>, the 2002 decision on the right of same-sex couples to <a href="https://www.oyez.org/cases/2002/02-102">engage in private consensual sexual acts</a> and the 2014 decision on the <a href="https://www.oyez.org/cases/2014/14-556">right of same-sex couples to marry</a>. All of these are presumably settled precedents. However, given Dobbs and the reasoning the various justices in the majority have offered, they too, along with others, could be candidates for reversal. </p>
<p><em>This is an updated version of an <a href="https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052">article originally published</a> Sept. 20, 2021.</em></p><img src="https://counter.theconversation.com/content/185941/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Schultz does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The justices who decided to overturn the abortion rights precedent of Roe v. Wade explained their reasoning, and signaled other precedents could be reversed as well.David Schultz, Professor of Law, University of Minnesota; Professor of Political Science, Hamline University Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1680522021-09-20T12:30:28Z2021-09-20T12:30:28ZThe Supreme Court has overturned precedent dozens of times in the past 60 years, including when it struck down legal segregation<figure><img src="https://images.theconversation.com/files/421689/original/file-20210916-23-1ds4ezt.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C7165%2C4719&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How much importance does the Supreme Court place on prior decisions?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-u-s-supreme-court-is-seen-on-september-02-2021-in-news-photo/1337858328">Kevin Dietsch/Getty Images</a></span></figcaption></figure><p>It is a central principle of law: Courts are supposed to follow earlier decisions – precedent – to resolve current disputes. But it’s inevitable that sometimes, the precedent has to go, and a court has to overrule another court, or even its own decision from an earlier case.</p>
<p>In its upcoming term, the U.S. Supreme Court faces the question of whether to overrule itself on abortion rights. Recent laws in <a href="https://www.washingtonpost.com/nation/2021/05/19/texas-abortion-law-abbott/">Texas</a> and <a href="https://www.washingtonpost.com/politics/courts_law/supreme-court-abortion-roe-v-wade/2021/05/17/cdaf1dd6-b708-11eb-a6b1-81296da0339b_story.html">Mississippi</a> restrict the right of women to terminate pregnancies in ways that appear to challenge the long-standing precedent of the Supreme Court’s 1973 decision in <a href="https://www.law.cornell.edu/supremecourt/text/410/113">Roe v. Wade</a>, which allowed women to have abortions in most circumstances.</p>
<p>Over the centuries, courts have stated many reasons they should adhere to precedent. First is the idea of equity or justice, under which “<a href="https://cgc.law.stanford.edu/commentaries/15-john-walker/#:%7E:text=I.-,How%20Does%20a%20Case%20Become%20a%20Binding%20Precedent%3F,cases%20should%20be%20decided%20alike.&text=First%2C%20as%20compared%20with%20the,as%20applied%20to%20similar%20facts.">like cases should be decided alike</a>,” as one senior federal judge put it. If a court in the past reviewed a particular set of facts and decided a case in a specific way, fairness dictates it should decide another similar case the same way. Precedent <a href="http://www.nonpublication.com/schauer.htm">promotes uniformity and consistency</a> in the law.</p>
<p>In addition, precedent promotes judicial efficiency: Courts do not have to decide from scratch every time. Finally, following precedent promotes predictability in the law and <a href="https://scholarlycommons.law.wlu.edu/wlulr/vol47/iss2/2/">protects people who have come to rely on past decisions as a guide for their behavior</a>. </p>
<p>But not all precedents are equal, and several current Supreme Court justices have signaled that they might be open to overturning even long-standing rulings that interpret the Constitution.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of people holding signs in front of the Supreme Court building" src="https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Abortion opponents are hoping the Supreme Court will overturn its 1973 decision in Roe v. Wade, which allows women to have abortions in many cases.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AbortionAidNetworks/4f5f3322844e477eb9e0ce0d618a3a01/photo">AP Photo/Patrick Semansky</a></span>
</figcaption>
</figure>
<h2>Reversing precedent is unusual</h2>
<p>The Supreme Court rarely overturns its past decisions or precedents. </p>
<p>In my forthcoming book, “Constitutional Precedent in Supreme Court Reasoning,” I point out that from 1789 to 2020 there were 25,544 Supreme Court opinions and judgments after oral arguments. The court has reversed its own constitutional precedents only 145 times – barely one-half of one percent.</p>
<p>The court’s historic periods are often characterized by who led it as chief justice. It was not until the 1930s under Chief Justice Charles Evans Hughes that it started to overturn precedents with any frequency. These were cases such as <a href="https://www.law.cornell.edu/supremecourt/text/312/657/USSC_PRO_312_100_82">United States v. Darby</a>, in which the court began to affirm President Franklin Roosevelt’s New Deal economic policies after previously rejecting them as unconstitutional.</p>
<p>Before then, of course, many cases asked the court to interpret clauses of the Constitution for the first time, so there were often no precedents to confront or overturn.</p>
<p>Under Chief Justices Earl Warren, Warren Burger, William Rehnquist and now John Roberts, the court overturned constitutional precedent 32, 32, 30 and 15 times, respectively. That is well under 1% of decisions handled during each period in the court’s history.</p>
<h2>When is precedent overturned?</h2>
<p>For most of its history the court changed its mind only when it thought past precedent was unworkable or no longer viable, perhaps eroded by its subsequent opinions or by changing social conditions. </p>
<p>This happened in <a href="https://www.law.cornell.edu/supremecourt/text/304/64">Erie Railroad v. Tompkins</a>, a 1938 Supreme Court case overturning a <a href="https://www.law.cornell.edu/supremecourt/text/41/1">96-year-old precedent</a> in which the court had constructed rules about how federal courts should handle cases involving parties from different states. The court in Erie said that the original decision proved to be unworkable and had been undermined by the court’s own later decisions.</p>
<p>The court has also said that its precedents based on <a href="https://www.law.cornell.edu/supct/html/90-5721.ZO.html">constitutional grounds</a> deserve less respect than those in which the court interprets statutes or laws. The reason is that if Congress thinks the court has erred in a matter of interpreting a statute or law, it is relatively easy for them to overturn it by passing a new law. But it’s quite hard to pass a constitutional amendment, so the only real way to update the judicial understanding of the Constitution is to overrule a precedent.</p>
<p>Of course the most famous reversal of precedent is the 1954 <a href="https://www.law.cornell.edu/wex/brown_v_board_of_education_(1954)">Brown v. Board of Education</a> under the Warren Court, in which it reversed <a href="https://www.law.cornell.edu/supremecourt/text/163/537">Plessy v. Ferguson</a> and struck down segregation under the “separate but equal” doctrine.</p>
<p>Roe v. Wade is an important precedent. In 1973 the Supreme Court ruled that women have a right to terminate their pregnancies. That right was reaffirmed in 1991 in <a href="https://www.law.cornell.edu/supremecourt/text/505/833">Planned Parenthood v. Casey</a>, with Justices Sandra Day O’Connor, Anthony Kennedy and David Souter noting that an entire generation of women came of age relying upon their right to control their bodies and terminate pregnancies in most circumstances. The justices said it would be wrong to upset that expectation.</p>
<p><a href="https://www.amazon.com/Rights-Turn-Conservative-Christian-Politics/dp/1108405606/ref=sr_1_4?dchild=1&keywords=abortion+politics&qid=1631829608&s=books&sr=1-4">Roe has also spurred opposition</a>, with many wanting to overturn it. For years, presidents including Ronald Reagan, George H.W. Bush, George W. Bush and Donald Trump sought to appoint justices to the Supreme Court with <a href="https://www.washingtonpost.com/politics/2017/live-updates/trump-white-house/neil-gorsuch-confirmation-hearings-updates-and-analysis-on-the-supreme-court-nominee/trump-promised-judges-who-would-overturn-roe-v-wade/">the goal of overturning Roe</a> and, with it, abortion rights. Now with a <a href="https://theconversation.com/3-ways-a-6-3-supreme-court-would-be-different-146558">6-3 conservative majority</a>, the court may be poised to do that.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman speaks into a microphone" src="https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The newest Supreme Court justice, Amy Coney Barrett, has signaled she might be open to overturning Roe.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/McConnellCenter/cad821c05f154524a8e698ce26178bfa/photo">AP Photo/Timothy D. Easley</a></span>
</figcaption>
</figure>
<h2>Justices get more comfortable reversing precedent</h2>
<p>Beginning with the Rehnquist court, justices have become more willing to reject precedents they think were badly reasoned, simply wrong, or inconsistent with their own senses of the constitutional framers’ intentions. Justice <a href="https://www.law.cornell.edu/supremecourt/text/18-1323">Clarence Thomas</a> has taken this position on abortion. Justice Amy Coney Barrett during her <a href="https://www.washingtonpost.com/podcasts/daily-202-big-idea/supreme-court-nominee-does-not-consider-roe-v-wade-a-super-precedent/">Senate confirmation hearing</a> argued that Roe is not a so-called superprecedent, a decision so important or foundational that it cannot be overturned. </p>
<p>[<em>The Conversation’s Politics + Society editors pick need-to-know stories.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-need-to-know">Sign up for Politics Weekly</a>.]</p>
<p>Chief Justice Roberts has been willing to overturn settled law when he thinks the original opinion was not well argued. He did so in <a href="https://www.law.cornell.edu/supct/html/08-205.ZC.html">Citizens United</a>, a 2010 decision overturning two major campaign finance decisions, <a href="https://www.law.cornell.edu/supremecourt/text/494/652">Austin v. Michigan Chamber of Commerce</a> and part of <a href="https://www.law.cornell.edu/supct/html/02-1674.ZS.html">McConnell v. FEC</a>.</p>
<p>In 2020, Justices Neil Gorsuch and Brett Kavanaugh in <a href="https://www.law.cornell.edu/supremecourt/text/18-5924">Ramos v. Louisiana</a> went out of their way to explain and justify their views on when constitutional precedent may be overturned. They echoed Justice Samuel Alito’s discussion in 2018 in <a href="https://www.law.cornell.edu/supct/cert/16-1466">Janus v. American Federation of State, County, and Municipal Employees Council Number 31</a>. All three justices said constitutional precedent is merely a matter of court policy or discretion, more easily overturned than a precedent about a law. Sometimes, they said, constitutional precedents can be overruled if later judges view them as wrongly decided or reasoned.</p>
<p>Abortion foes have been preparing practically since Roe was decided to overturn it. They have set both the political conditions and legal justification to overturn Roe, and perhaps this year it will be the time when it finally happens.</p><img src="https://counter.theconversation.com/content/168052/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Schultz does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There is value in observing legal precedent, but sometimes circumstances, logic or judges’ views determine it’s time to overturn it.David Schultz, Professor of Law, University of Minnesota; Professor of Political Science, Hamline University Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1465462020-09-21T14:04:13Z2020-09-21T14:04:13ZGinsburg’s legal victories for women led to landmark anti-discrimination rulings for the LGBTQ community, too<figure><img src="https://images.theconversation.com/files/358924/original/file-20200920-22-1yinx6c.jpg?ixlib=rb-1.1.0&rect=6%2C13%2C4432%2C2950&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Michael Widomski, left, and David Hagedorn at the makeshift memorial for Justice Ginsburg in front of the U.S. Supreme Court on Sept. 20, 2020 in Washington, DC. Ginsburg officiated their wedding in 2013.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/michael-widomski-and-david-hagedorn-embrace-after-leaving-a-news-photo/1228622387?adppopup=true">Samuel Corum/Getty Images</a></span></figcaption></figure><p>The well-deserved tributes to Ruth Bader Ginsburg in the wake of her death justifiably focus on her transformational role in ending centuries of legal discrimination against women. </p>
<p>Starting in 1971, Ginsburg won five cases before the Supreme Court based on the <a href="https://www.law.cornell.edu/constitution/amendmentxiv">equal protection clause of the Constitution’s 14th Amendment</a>. Those cases led the court to end blatant discriminate against women.</p>
<p>She was not the first woman who attempted to use the 14th Amendment to achieve equality. Yet her legal theories, determination and brilliant litigation strategy won, where others before her had failed. </p>
<p>It is less known that Ginsburg’s victories on behalf of women also provided a roadmap and legal precedent for ending legal discrimination against the LGBTQ community.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Supreme Court Justice Ruth Bader Ginsburg sitting in her chambers in 2002." src="https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supreme Court Justice Ruth Bader Ginsburg in her chambers.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-justice-ruth-bader-ginsburg-sits-in-her-news-photo/2396958?adppopup=true">David Hume Kennerly/Getty Images</a></span>
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</figure>
<h2>Unequal protection</h2>
<p>The <a href="https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv">14th Amendment was enacted after the Civil War</a>, in 1868, to give formerly enslaved Black people and their progeny equal protection under the law. It states, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; … nor deny to any person within its jurisdiction the equal protection of the laws.” </p>
<p>Women’s rights advocates immediately tried to use the 14th Amendment’s broad language to gain rights. At the time that the 14th Amendment was enacted, women could not own property or vote and were considered their husbands’ property. </p>
<p>They focused on the 14th Amendment’s broadly worded “privileges and immunities” clause as a way to gain some form of legal protection. Because that clause had no fixed meaning, it could be interpreted, they believed, in a way that advanced women’s rights.</p>
<p>So, in 1872, <a href="https://www.britannica.com/event/Bradwell-v-State-of-Illinois">Myra Bradwell sued the state of Illinois</a> after being denied a license to practice law because she was a woman. Ruling against her, the Illinois Supreme Court held that Bradwell did not legally exist separately from her husband, and that the <a href="https://www.law.cornell.edu/supremecourt/text/83/130">privilege and immunities clause did not require the state</a> to allow her or any other woman to pursue a professional career.</p>
<p>Similarly, in 1872, activists, including Susan B. Anthony, invoked the 14th Amendment to demand the right to vote. Anthony and several others were arrested after they voted in the November election. At <a href="http://law2.umkc.edu/faculty/projects/ftrials/anthony/sbaaccount.html">Anthony’s trial</a>, the judge said “The 14th Amendment gives no right to a woman to vote, and the voting by Miss Anthony was in violation of the law.”</p>
<p>One woman in Missouri, Virginia Minor, sued when she was refused the right to even register to vote. She argued <a href="https://www.law.cornell.edu/supremecourt/text/88/162">before the U.S. Supreme Court</a> – through her lawyer husband – that the 14th Amendment guaranteed her the right to vote as a “privilege and immunity.” </p>
<p>She lost. </p>
<h2>Credit where it’s due</h2>
<p>A century later, Ruth Bader Ginsburg’s work transformed American jurisprudence for women. To do this, she also invoked the 14th Amendment. But this time, she focused on the amendment’s Equal Protection Clause, which was enacted to protect newly-freed enslaved people. </p>
<p>Ginsburg did not devise this strategy alone. She was inspired by the writings of the African American lawyer and civil rights activist, <a href="https://www.paulimurraycenter.com/who-is-pauli">Anna Pauline “Pauli” Murray</a>. Murray, <a href="https://now.org/about/history/finding-pauli-murray/">a co-founder of the National Organization for Women</a>, argued that the 14th Amendment’s equal protection clause could be used to guarantee gender equality. </p>
<figure class="align-center ">
<img alt="Joseph and Lt. Sharron Frontiero" src="https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=766&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=766&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=766&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=963&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=963&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=963&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Joseph and Lt. Sharron Frontiero. Ginsburg successfully brought a 1973 case on behalf of Joseph, who was denied military benefits on the theory that women could not be primary economic providers for their families.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/manchester-massachusetts-air-force-lt-sharon-frontiero-news-photo/515398514?adppopup=true">Bettmann/Getty</a></span>
</figcaption>
</figure>
<p>Murray’s 1950s book, “<a href="https://ugapress.org/book/9780820350639/states-laws-on-race-and-color/">States’ Laws on Race and Color</a>,” was considered <a href="https://whyy.org/articles/the-invisible-women-of-the-civil-rights-movement/">the bible of the civil rights movement</a>. Ginsburg was so influenced by Murray’s work that she listed Murray as a co-author of her first U.S. Supreme Court gender justice brief, <a href="https://www.law.cornell.edu/supremecourt/text/404/71">Reed v. Reed, in 1971</a>. </p>
<p>The legal strategy that Ginsburg used, however, was her own.</p>
<p>In 1971, the notion of women’s equality was absurd to most people. Ginsburg, who was at the top her her class at Harvard and Columbia law schools, <a href="https://time.com/5660188/ruth-bader-ginsburg-dies/">could not get a job after she graduated</a>. </p>
<p>Predicting that a Supreme Court composed of older white men would likely dismiss demands by women that they should be treated equally, she realized gender stereotypes could be shattered only if white men argued that women should be treated equally under the law. </p>
<p>For example, in the 1973 case, <a href="https://www.law.cornell.edu/supremecourt/text/411/677">Frontiero v. Richardson</a>, she successfully sued on behalf of the husband of a female Air Force officer, who was refused military benefits on the theory that women could not be primary economic providers for their families.</p>
<p>Similarly, in <a href="https://supreme.justia.com/cases/federal/us/420/636/">Weinberger v. Weisenfeld</a> in 1975, she sued on behalf of a man who had been denied Social Security survivor benefits. That agency automatically assumed that men would not need survivor benefits because they earned more than their wives. </p>
<p>This was a brilliant strategy. Based on the five lawsuits that Ginsburg won, the Supreme Court articulated for the first time that the 14th Amendment was not only the vehicle for racial equality – it could also be invoked to achieve gender-based equality. </p>
<h2>Another 30 years</h2>
<p>Even after Ginsburg’s victories in the 1970s, women still did not have equal rights under the law. The equal protection women enjoyed, according to the Supreme Court, wasn’t as strong as the protection that the Constitution afforded against racial discrimination.</p>
<p>It wasn’t until over 30 years later, in 1996, when she was a sitting justice on the U.S. Supreme Court, that Ginsburg fully equalized the playing field for women. </p>
<p>In the case <a href="https://www.oyez.org/cases/1995/94-1941">United States v. Virginia Military Academy</a>, Justice Ginsburg wrote for the court’s majority that “exacting scrutiny” must be applied to any law that treats women differently than men.</p>
<p>She wrote that any law that “denies to women, simply because they are women, full citizenship stature - equal opportunity to aspire, achieve, participate in and contribute to society” violated the equal protection Clause.</p>
<h2>The RBG playbook</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Justice Neil Gorsuch." src="https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=860&fit=crop&dpr=1 600w, https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=860&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=860&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1081&fit=crop&dpr=1 754w, https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1081&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1081&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Justice Neil Gorsuch wrote the majority opinion in a 2020 case that expanded employment discrimination protection to LGBTQ workers.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-associate-justice-neil-gorsuch-poses-for-a-news-photo/691165204?adppopup=true">Alex Wong/Getty Images</a></span>
</figcaption>
</figure>
<p>Once it was cemented into law that the equal protection clause could overturn non-race-based discriminatory laws, other marginalized groups began using the Equal Protection Clause to gain equal rights, including the LGBTQ community. </p>
<p>Their first victory was a 1996 ruling, Romer v. Evans, overturning laws around the country <a href="https://www.law.cornell.edu/supct/html/94-1039.ZO.html">that made gay sex a crime</a>.</p>
<p>A series of similar victories based on the equal protection clause followed, all written by Justice Anthony Kennedy, a conservative Republican appointee. Those decisions culminated in the 2015 landmark ruling <a href="https://www.oyez.org/cases/2014/14-556">Obergefell v. Hodges</a>, where the Supreme Court ruled in favor of marriage equality, expanding the application of the 14th Amendment’s equal protection clause to cover LGBTQ persons, by requiring all states to recognize same-sex marriages that were performed in other states.</p>
<p><a href="https://www.oyez.org/cases/2014/14-556">Justice Kennedy’s opinion</a>, which extols the virtues of marriage, states that “It would misunderstand these men and women to say they disrespect the idea of marriage… They ask for equal dignity in the eyes of the law. The Constitution grants that right.”</p>
<p>In 2020, the <a href="https://www.oyez.org/cases/2019/17-1618">Bostock v. Clayton County</a> decision, which banned employment discrimination against LGBTQ workers, used a similar analysis. Even though it was based on Title VII of the 1964 Civil Rights Act, <a href="https://law.rutgers.edu/directory/view/venetis">as a legal scholar</a>, I believe the language used by Trump appointee Justice Neil Gorsuch, who wrote the court’s majority opinion, comes straight out of the RBG playbook.</p>
<p><a href="https://www.law.cornell.edu/supremecourt/text/17-1618">Gorsuch wrote</a>: “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. … But the limits of the drafters’ imagination supply no reason to ignore the law’s demands … Only the written word is the law, and all persons are entitled to its benefit.” </p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>These advances were only possible because Ruth Bader Ginsburg paved the way for applying the equal protection clause beyond its original purpose, to promote equality for women.</p>
<p>To echo Justice Gorsuch, that is something that the drafters of the 14th Amendment certainly never considered, and almost certainly never would have endorsed.</p><img src="https://counter.theconversation.com/content/146546/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Penny Venetis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ruth Bader Ginsburg’s death sparked many tributes to her work ending sex discrimination against women. That work also paved the way for successes in the fight for equal rights for the LGBTQ community.Penny Venetis, Clinical Professor of Law, Director of the International Human Rights Clinic, Rutgers University - NewarkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1197182019-09-24T11:28:27Z2019-09-24T11:28:27ZChristianity at the Supreme Court: From majority power to minority rights<figure><img src="https://images.theconversation.com/files/293448/original/file-20190921-135118-gq6yel.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court ruled that baker Jack Phillips, owner of Masterpiece Cakeshop, could refuse to make a wedding cake for a same-sex couple because of his religious beliefs.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court-Wedding-Cake-Case/2b1383a5edfb46c0a2babbeb49f816df/45/0">AP/David Zalubowski)</a></span></figcaption></figure><p>A movement for religious rights is transforming the place of religion in American public life.</p>
<p>From the 1960s until very recently, liberals successfully argued at the Supreme Court that the tyranny of the majority cannot define the lives and experiences of secular citizens. </p>
<p>For decades, the court regularly ruled that laws imposed by local majorities enforcing school prayer or religious displays on government property violated the <a href="https://www.law.cornell.edu/wex/establishment_clause">Establishment Clause of the First Amendment</a>, which has been <a href="https://constitutioncenter.org/ic-2019/interpretation/amendment-i/interps/264#the-establishment-clause-a-check-on-religious-tyranny">interpreted to mean the government is prohibited from endorsing religion</a> or favoring one religion over another.</p>
<p>Those decisions meant that the rights of the non-Christian minority <a href="https://theconversation.com/the-messy-reality-of-religious-liberty-in-america-85963">defined the public place of religion in the U.S.</a> </p>
<p>But in the last decade, the reversal of power between religious and secular sides of American culture created a new self-perception among Christians as a distinct minority group. More importantly for legal proceedings, this led to a new strategy: They argue that they are now the minority group whose rights demand protection under the Constitution.</p>
<h2>Rise of the Christian minority</h2>
<p>Recent Supreme Court rulings demonstrate that the justices tend to agree. </p>
<p>Three major religion cases in <a href="https://www.scotusblog.com/case-files/cases/trinity-lutheran-church-of-columbia-inc-v-pauley/">2017</a>, <a href="https://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/">2018</a> and <a href="https://www.scotusblog.com/case-files/cases/the-american-legion-v-american-humanist-association/">2019</a> pitted a religious claim against a secular one – a <a href="https://www.scotusblog.com/case-files/cases/trinity-lutheran-church-of-columbia-inc-v-pauley/">church against the state government</a>, a <a href="https://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/">Christian business against a state agency</a> and <a href="https://www.scotusblog.com/case-files/cases/the-american-legion-v-american-humanist-association/">an atheist organization against a veterans’ group</a>.</p>
<p>In each case, the secular claim won in the lower courts, which grounded their decisions in the understanding of the First Amendment the high court had developed beginning in the 1960s.</p>
<p>In each case, the Supreme Court reversed the lower courts and ruled in favor of the religious claim. All three cases feature the same split of justices: 7-2 with liberal Justices Stephen Breyer and Elena Kagan joining five conservatives. The only dissenters were Justices Ruth Bader Ginsburg and Sonia Sotomayor.</p>
<h2>State money for religious groups</h2>
<p>In <a href="https://www.oyez.org/cases/2016/15-577">the first case</a>, the state of Missouri offered playground resurfacing to daycare centers that serve impoverished communities. A center run by Trinity Lutheran Church ranked fifth out of 44 applicants based on the state’s objective criteria.</p>
<p>But the church’s daycare was denied state assistance solely because it was affiliated with a religious institution.</p>
<p>Ginsburg and Sotomayor <a href="https://supreme.justia.com/cases/federal/us/582/15-577/#tab-opinion-3752808">agreed with that decision</a>. In their view, Founding Father <a href="http://www.loc.gov/loc/lcib/9806/danbury.html">Thomas Jefferson’s “wall of separation between church and state”</a> means that the government cannot intermingle with religious organizations or give the appearance of endorsing religion. </p>
<p>As Justice Sotomayor writes in her <a href="https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf">dissent</a>, we should avoid “the dangers that result when the two become entwined… by drawing fairly clear lines of separation between church and state.”</p>
<p>The two justices support the <a href="https://www.oyez.org/cases/1970/89">court’s 1971 “Lemon Test</a>,” which says that “excessive government entanglement” with religion is a violation of the Constitution. If this standard is followed, the “establishment of religion” includes almost any government involvement with a religious group, meaning all government programs must remain exclusively secular. </p>
<p>But the majority on the <a href="https://www.oyez.org/cases/2016/15-577">current court</a> believes that “the wall of separation” was only Jefferson’s view, not the consensus of the Founders codified in the <a href="https://constitutioncenter.org/interactive-constitution/amendments/amendment-i">text of the Constitution</a>, which uses very different language.</p>
<p>By itself, the Establishment Clause’s meaning appears clear: No government involvement with religion. But a second provision in the First Amendment also addresses religion, the <a href="https://www.law.cornell.edu/wex/free_exercise_clause">Free Exercise Clause</a>, which protects religious practice. </p>
<p>Together, these clauses seem to endorse a balance: government should neither enforce nor inhibit religion. This implies neutrality rather than separation. So the government is not prohibited from touching religion, but only from forcing it on citizens.</p>
<p>The court majority’s view in the Missouri case is that to treat a church daycare differently from a secular one is to discriminate unconstitutionally. </p>
<p>The liberal Justice Stephen Breyer joined the majority opinion. As he phrased it in a <a href="https://supreme.justia.com/cases/federal/us/588/17-1717/">2019 opinion</a>, we must consider “the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its separate sphere.”</p>
<h2>Gay rights and religious rights</h2>
<p>The second case began when a gay couple planning a wedding asked for a custom cake from Masterpiece Cakeshop in Lakewood, Colorado in 2012. The owner refused their request. In his view it would mean celebrating a ceremony that violated his deeply held religious convictions. </p>
<p>The Colorado Civil Rights Commission fined the baker for violating the state’s anti-discrimination laws. <a href="https://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/">The Supreme Court reversed the decision</a>, saying the state of Colorado demonstrated “clear and impermissible hostility” toward the baker and his religious beliefs. </p>
<p>Many commentators saw this dispute as a <a href="https://www.theatlantic.com/ideas/archive/2018/06/the-court-slices-a-narrow-ruling-out-of-masterpiece-cakeshop/561986/">gay rights case</a>. But it is more accurately a religious rights case. The religious side brought the suit, and that side won in a way that expanded religious rights.</p>
<p>“Hostility” is the key word in the Masterpiece Cakeshop <a href="https://www.oyez.org/cases/2017/16-111">ruling</a>. Justice Anthony Kennedy wrote that the state government’s “hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” </p>
<h2>Religious monuments on public land</h2>
<p>The <a href="https://www.scotusblog.com/case-files/cases/the-american-legion-v-american-humanist-association">American Legion v. American Humanist case</a> was an old-fashioned religious dispute about a giant cross on public property. </p>
<p>Does the imposing Bladensburg Peace Cross, set in a highway median on the outskirts of Washington, D.C., violate the First Amendment? </p>
<p><a href="https://americanhumanist.org/">The American Humanist Association</a> – a secularism-promoting nonprofit whose motto is “Good Without a God” – brought suit asking that the cross be demolished or moved from public land, where its members would not have to see it while driving on the highway.</p>
<p>The <a href="https://www.oyez.org/cases/2018/17-1717">Supreme Court said no</a>. Like Kennedy in Masterpiece Cakeshop, Justice Samuel Alito in the Peace Cross case argued that government hostility toward religion was impermissible: “a government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supreme Court decisions in the last decade have helped changed the power balance between religious and secular groups.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court-Vehicle-Searches/6fb1b4adfc834236bb20bc8082c35eb3/120/0">AP/Scott Applewhite</a></span>
</figcaption>
</figure>
<h2>Majority powers to minority rights</h2>
<p>Underneath these victories for religious citizens and institutions is a shift in legal status. Traditional Christians were long perceived to be – by themselves and by the court – the dominant majority. Now traditional Christians argue they are a persecuted minority with rights. The court tends to agree.</p>
<p>Around 2010 the Protestant majority dominant throughout American history up to that point <a href="https://www.pbs.org/newshour/nation/white-christians-now-minority-u-s-population-survey-says">dropped into the minority</a>. <a href="https://www.pewforum.org/religious-landscape-study/attendance-at-religious-services/">Active churchgoers</a> now represent only a third of Americans. </p>
<p>Conversely, Americans with no religious affiliation – the “nones” – have risen dramatically. They are now approximately a quarter of the population, up from around 15% only 10 years ago. <a href="https://www.pewresearch.org/fact-tank/2015/05/13/a-closer-look-at-americas-rapidly-growing-religious-nones/">About 35%</a> of millennials and 17% of baby boomers are now nones.</p>
<p>Along with these changes has come a <a href="https://stream.org/committed-christians-minority-your-kids-need-know/">shift in perceptions</a> of who is discriminated against. </p>
<p>According to a recent <a href="https://www.people-press.org/2019/04/15/sharp-rise-in-the-share-of-americans-saying-jews-face-discrimination/">Pew survey</a>, between 2016 and 2019, perceptions of discrimination against blacks, Hispanics, women and especially Jews have gone up. But so have perceptions of discrimination against Christians. </p>
<p>Among Republicans, the proportion who perceive of “a lot” of discrimination against Evangelical Christians has gone from 21% in 2016 to 30% in 2019. </p>
<p>In constitutional rulings, rights often protect minorities against majorities. Declining numbers can mean less power but rising protections.</p>
<p>A case accepted for the Supreme Court’s 2019-2020 term, <a href="https://www.scotusblog.com/case-files/cases/espinoza-v-montana-department-of-revenue/">Espinoza v. Montana,</a> concerns whether state-funded student aid programs <a href="https://www.scotusblog.com/2019/09/symposium-principles-or-improvisations-why-and-how-the-justices-should-reject-anti-religious-discrimination/#more-289193">can exclude religious schools</a>.</p>
<p>That case will test whether the court’s transformation of the place of religion in American life continues.</p><img src="https://counter.theconversation.com/content/119718/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There’s been a reversal of power between religious and secular sides of American culture. The Supreme Court is now at the center of that shift.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1104762019-01-28T11:45:24Z2019-01-28T11:45:24ZSeparation of powers: An invitation to struggle<figure><img src="https://images.theconversation.com/files/255672/original/file-20190126-108355-18grgyr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Letter from President Trump to House Speaker Nancy Pelosi.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Government-Shutdown/24309857cb704e0baecfe98518d2e13f/61/0">AP/Wayne Partlow</a></span></figcaption></figure><p>There’s been a lot of trouble in the nation’s capital lately.</p>
<p>The United States just endured a monthlong government shutdown <a href="https://www.nytimes.com/2019/01/02/us/whats-affected-government-shutdown.html">affecting services</a> ranging from <a href="https://www.cnn.com/2019/01/25/politics/donald-trump-flight-delays-shutdown/index.html">airline travel</a> to <a href="https://www.washingtonpost.com/business/2019/01/26/irs-will-need-least-year-recover-government-shutdown-watchdog-tells-congress/?utm_term=.f22bbefaf02a">tax collection</a>. </p>
<p>Congress and the president have battled over where and even whether to <a href="https://www.usatoday.com/story/news/politics/2019/01/26/state-union-tuesday-government-reopening-pelosi/2688484002/">hold the State of the Union</a>. </p>
<p>Plus, late last year, a federal judge <a href="https://assets.documentcloud.org/documents/5198146/Order-granting-temporary-restraining-order.pdf">blocked the Trump administration</a> from enforcing new immigration policies that would limit migrants to seeking asylum at established border checkpoints. When President Trump dismissed this ruling as the product of a politically motivated <a href="https://www.washingtonpost.com/local/immigration/judges-ruling-means-trump-administration-must-allow-illegal-border-crossers-to-seek-asylum/2018/11/20/1aebd608-ecc1-11e8-96d4-0d23f2aaad09_story.html">“Obama judge,”</a> Chief Justice John Roberts pushed back, invoking the spirit of the Thanksgiving holiday in stating that an <a href="http://www.abajournal.com/news/article/chief_justice_roberts_criticizes_trumps_reference_to_obama_judge_in_asylum">“independent judiciary is something we should all be thankful for.”</a></p>
<p>And if we push beyond these headline stories, we can see that government’s bread and butter operations, like <a href="https://www.journals.uchicago.edu/doi/10.1086/693347?mobileUi=0">appointing judges</a> or <a href="http://www.pewresearch.org/fact-tank/2019/01/25/a-productivity-scorecard-for-115th-congress/">passing meaningful legislation</a>, have slowed and become subjects of pitched political fights.</p>
<p>Of course, clashes between the branches of government are nothing new. Indeed, they are actually baked into our constitutional design. </p>
<p>The founders built a system of government with three separate branches – we call it the “separation of powers” – that are each supposed to monitor and check the actions of the others in order to prevent abuses of power.</p>
<p>But given the breakdowns in functioning within all three branches, it might appear that the separation of powers system is broken or unbalanced. Or perhaps the human element essential for the separation of powers to function properly has stopped working?</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/255671/original/file-20190126-108367-1fil7ug.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/255671/original/file-20190126-108367-1fil7ug.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/255671/original/file-20190126-108367-1fil7ug.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=730&fit=crop&dpr=1 600w, https://images.theconversation.com/files/255671/original/file-20190126-108367-1fil7ug.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=730&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/255671/original/file-20190126-108367-1fil7ug.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=730&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/255671/original/file-20190126-108367-1fil7ug.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=917&fit=crop&dpr=1 754w, https://images.theconversation.com/files/255671/original/file-20190126-108367-1fil7ug.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=917&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/255671/original/file-20190126-108367-1fil7ug.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=917&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Portrait of George Washington, by Gilbert Stuart.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/George_Washington#/media/File:Gilbert_Stuart_Williamstown_Portrait_of_George_Washington.jpg">Wikipedia</a></span>
</figcaption>
</figure>
<h2>No clear concept</h2>
<p>According to America’s first president, George Washington, the experiences of the early United States, not to mention “ancient and modern” nations across the globe, demonstrated the <a href="https://www.loc.gov/resource/mgw2.024/?sp=229&st=text">“necessity of reciprocal checks in the exercise of political power”</a> to protect the public interest.</p>
<p>While the U.S. Constitution gives specific and implied powers to the national legislative, executive and judicial branches, there’s no separation of powers clause or specific reference, as there are in other national constitutions like those found in <a href="https://www.constituteproject.org/search?lang=en&q=separation%20of%20powers&status=in_force">Croatia, the Dominican Republic and Turkey.</a></p>
<p>The framers of the U.S. Constitution had varying ideas about what our separated powers are designed for. I’ve <a href="http://bpeabody.wixsite.com/bgpeabody">conducted research</a> on the separation of powers <a href="https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1089&context=aulr">showing that</a> there’s also no clear consensus among contemporary judges or scholars, either.</p>
<p>Still, there are a few broadly accepted features of our separated powers system. </p>
<p>Most people see separation of powers as the federal government’s division into three branches, legislative, executive and judicial, each with a special job. </p>
<p><a href="https://press.princeton.edu/titles/11155.html">Scholars</a> and <a href="https://press.princeton.edu/titles/4249.html">other constitutional experts</a> note that this division of powers is mixed and somewhat messy.</p>
<p>For example, Congress has the lion’s share of legislative power. But the president can both veto bills and recommend to Congress <a href="https://www.constituteproject.org/constitution/United_States_of_America_1992">“such Measures as he shall judge necessary and expedient</a>,” according to the Constitution.</p>
<p>This untidy power-sharing is supposed to avoid what founding father James Madison called <a href="http://avalon.law.yale.edu/18th_century/fed47.asp">“the very definition of tyranny”</a> – all power in one set of hands. That means we give ambitious politicians tools that bring them into conflict as a way of limiting the power of any one person or branch.</p>
<p>The Constitution and its separation of powers is not a clean division of labor, but what scholar Edward S. Corwin dubbed an “<a href="http://www.gutenberg.org/files/18637/18637-h/18637-h.htm">invitation to struggle</a>,” where elected officials protect their branches – and themselves – by meddling, being alert and, where necessary, confrontational.</p>
<p>In other words, what’s supposed turn the Constitution into what poet James Russell Lowell called
“<a href="https://www.amazon.com/Machine-That-Would-Itself-Constitution/dp/141280583X">a machine that would go of itself</a>,” is a set of rules and organizations fueled by certain kinds of behavior among those in power to make that system work.</p>
<p>The separation of powers is more like a guidebook for running an effective poker tournament rather than a set of instructions for a specific piece of Ikea furniture.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/255670/original/file-20190126-108355-181ywv7.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/255670/original/file-20190126-108355-181ywv7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/255670/original/file-20190126-108355-181ywv7.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=236&fit=crop&dpr=1 600w, https://images.theconversation.com/files/255670/original/file-20190126-108355-181ywv7.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=236&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/255670/original/file-20190126-108355-181ywv7.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=236&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/255670/original/file-20190126-108355-181ywv7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=297&fit=crop&dpr=1 754w, https://images.theconversation.com/files/255670/original/file-20190126-108355-181ywv7.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=297&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/255670/original/file-20190126-108355-181ywv7.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=297&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The White House, U.S. Capitol and the Supreme Court.</span>
<span class="attribution"><span class="source">White House, Eric Kiser; Capitol, John Xavier; Supreme Court, Architect of the Capitol</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>An incomplete sketch</h2>
<p>But this view of the separation of powers, focused on negative checks, a federal division of powers and leaders <a href="https://harpers.org/blog/2009/07/jefferson-the-risk-of-too-much-confidence-in-elected-government/">jealous</a> and protective of their institutional powers, is only half of the story.</p>
<p>Our constitutional powers <a href="https://www.aei.org/publication/separation-of-powers/">“were divided to make possible their effective use … to prevent deadlock, not to create it,”</a> wrote Ann Stuart Anderson, a researcher at the American Enterprise Institute. </p>
<p>So the separation of powers is more than checks and balances designed to prevent mischief. </p>
<p>“Workable” government requires human qualities that go beyond the architecture of government. We need some level of cooperation, deference and mutual respect from the people within government.</p>
<p>This is what <a href="https://www.nytimes.com/2018/01/27/opinion/sunday/democracy-polarization.html">Steven Levitsky and Daniel Ziblatt</a> have called the norms of “mutual toleration” and “forbearance.” </p>
<p>As former Supreme Court Justice Anthony Kennedy put it during his <a href="https://www.americanbar.org/content/dam/aba/migrated/poladv/priorities/judicial_pay/kennedystatement.authcheckdam.pdf">appearance at a Senate Judiciary Committee hearing</a> on strengthening judicial independence in 2007, the “separation of powers and checks and balances are not automatic mechanisms. They depend upon a commitment to civility, open communication, and good faith on all sides.”</p>
<p>So, for example, the president is constitutionally permitted to exercise the veto. But presidents must use that power judiciously. It would presumably violate the spirit of the separation of powers if the chief executive vetoed legislation every time he didn’t get his way.</p>
<h2>The public expects more</h2>
<p>For those who watched the fight between House Speaker Nancy Pelosi and President Trump over when he could deliver the State of the Union address, it might appear that the civility and mutual respect required to keep our separated powers working smoothly are no longer present.</p>
<p>And the incident, along with the shutdown, prompts the question: Is our constitutional separation of powers broken or working? </p>
<p>The glib, but probably accurate answer is: both. </p>
<p>Like his predecessors, <a href="https://www.govtrack.us/events/enacted-bills">President Trump continued to sign bills into law</a> while the government was shut down. Because of the <a href="http://www.gao.gov/legal/lawresources/antideficiencybackground.html">Antideficiency Act</a>, “essential” government departments, like the U.S. military and courts, continued to operate even after their traditional funding sources expired.</p>
<p>And some states, <a href="https://www.cnn.com/2019/01/23/politics/states-unemployment-essential-workers/index.html">like California and Colorado</a>, responded to the federal stalemate by extending unemployment benefits to government employees working without pay.</p>
<p>But this patchwork of policies and short-term fixes may not be enough when it comes to the inevitable next shutdown, or for tackling even bigger issues facing the nation, including immigration, climate change or the ongoing threats of terrorism and cyberwarfare. </p>
<p>And the <a href="http://www.people-press.org/2017/12/14/public-trust-in-government-1958-2017/">well-documented cratering of public trust</a> in government – with only 18 percent of Americans in 2007 saying they regularly trust the “government in Washington” to do what is right, compared with 77 percent in 1964 – shows that “We the People” expect something more.</p><img src="https://counter.theconversation.com/content/110476/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bruce Peabody does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>After the recent government shutdown and breakdowns in functioning within all three branches, it looks like the separation of powers system is broken or unbalanced. It is – and it isn’t.Bruce Peabody, Professor of American Politics, Fairleigh Dickinson University Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/992482018-08-02T10:37:17Z2018-08-02T10:37:17ZWill the Supreme Court overturn Roe v. Wade? And if it does, what happens to abortion rights?<figure><img src="https://images.theconversation.com/files/230058/original/file-20180731-136673-8o8wvx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">AP</span> </figcaption></figure><p>For people who care about abortion rights, these are worrying times.</p>
<p>Of course, pro-choice advocates began losing sleep the minute Donald Trump was elected. During the 2016 presidential election, Trump claimed that Roe v. Wade – the <a href="https://www.oyez.org/cases/1971/70-18">1973 landmark decision</a> establishing that women have a constitutional right to access abortion – would be <a href="https://www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html">“automatically” overruled</a> by his Supreme Court picks. </p>
<p>Shortly after taking office, Trump announced his first Supreme Court nominee, the conservative <a href="https://theconversation.com/who-is-neil-gorsuch-72142">Neil Gorsuch</a>, who replaced <a href="https://theconversation.com/former-clerk-on-justice-antonin-scalia-and-his-impact-on-the-supreme-court-55211">the conservative Justice Antonin Scalia</a>. Swapping one conservative for another didn’t change much for Roe. But now, a second spot has opened up on the court with the retirement of <a href="https://theconversation.com/justice-kennedys-lgbtq-legacy-may-be-short-lived-81239">Justice Anthony Kennedy</a> – who has been a key vote to preserve abortion rights. </p>
<p>From my vantage point as <a href="https://scholar.google.com/citations?user=uAaBGrMAAAAJ&hl=en&oi=sra">a constitutional law professor</a> who also litigates reproductive rights cases, the future of Roe v. Wade looks more tenuous than it ever has.</p>
<h2>A new vacancy, a new court</h2>
<p>Replacing Kennedy with a more conservative judge could fundamentally remake constitutional doctrine in this area.</p>
<p>In 1992, Justice Kennedy was a swing vote to preserve Roe v. Wade in a 5-4 decision known as <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood v. Casey</a>. More recently, in the 2016 case of <a href="https://www.oyez.org/cases/2015/15-274">Whole Woman’s Health v. Hellerstedt</a>, Justice Kennedy’s vote was critical to the five-justice majority, which again affirmed the right to choose as fundamental. </p>
<p>But Justice Kennedy’s proposed successor Brett Kavanaugh has expressed hostility to Roe. In a <a href="https://www.aei.org/wp-content/uploads/2017/08/from-the-bench.pdf">public speech last year</a>, Kavanaugh praised the late Chief Justice William Rehnquist’s dissent from the Roe decision. He also <a href="http://www.scotusblog.com/wp-content/uploads/2017/11/17-654-opinion-below.pdf">voted against an undocumented minor</a> in government custody who wanted an abortion, complaining that the judges who voted in favor of the young woman were granting a right to “abortion on demand” and arguing that the woman should have to delay the procedure for a few weeks until she could be placed with a family. This record suggests Kavanaugh could provide a critical fifth vote to the anti-Roe wing of the court, joining Justices Clarence Thomas, John Roberts, Samuel Alito and Gorsuch. </p>
<h2>What happens if Roe is overruled?</h2>
<p>If the Supreme Court votes to overrule Roe, it wouldn’t immediately make abortion illegal throughout the country. That would probably require five justices to decide that embryos and fetuses are “persons” entitled to constitutional protection. No justice – not even Scalia – has ever taken such an extreme view.</p>
<p>Instead, the court would probably say that states are allowed to restrict abortion however they see fit. It would say that states can choose to protect potential life, and that the woman’s right to choose whether and when to become a parent is not strong enough to overcome the state’s interest in protecting fetuses.</p>
<p>That means some states would probably outlaw abortion altogether, perhaps with narrow exceptions in cases of rape or incest, or when the woman’s life is in danger. Other states may place few or no restrictions on abortion – perhaps making it illegal only once the fetus is viable, typically after <a href="https://www.theatlantic.com/politics/archive/2015/01/a-look-at-late-term-abortion-restrictions-state-by-state/448098/">the 22nd week of pregnancy</a>.</p>
<h2>The role of Roberts</h2>
<p>Of course, it’s possible that Roe will live another day. </p>
<p>With Kennedy gone, Chief Justice John Roberts will be at the ideological center of the Court, with four conservatives – Thomas, Alito, Gorsuch, and Kavanaugh – all to the right of him. Roberts is therefore likely to become the swing vote. </p>
<p>Roberts is a <a href="https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1073&context=faculty_publications">famously careful jurist</a> who often avoids overruling precedent if he can do so by issuing a narrow opinion instead. He is also likely concerned about his legacy. He might not want the Roberts court to be the court that overruled Roe and took away the right to choose. He might be concerned about the backlash among members of the public, who have long assumed that Roe was here to stay and who <a href="http://www.pewresearch.org/fact-tank/2017/01/03/about-seven-in-ten-americans-oppose-overturning-roe-v-wade/">favor keeping it by more than a two-to-one margin</a>.</p>
<p>Then again, many justices have affirmed their devotion to precedent, only to later overturn it. Both Roberts and Gorsuch spoke favorably about following precedent during their Senate confirmation hearings. Yet both justices voted just this past term to overturn a unanimous Supreme Court case protecting the rights of unions – <a href="https://www.oyez.org/cases/1976/75-1153">Abood v. Detroit Board of Education</a> – that had stood undisturbed for more than 40 years. </p>
<h2>A challenge in the states</h2>
<p>Also, importantly, numerous states stand ready to mount a challenge to Roe. In 2018 alone, seven states have introduced or passed so-called <a href="https://rewire.news/legislative-tracker/law-topic/heartbeat-bans/">“heartbeat bills”</a> that ban abortion as early as six weeks of pregnancy. But the Supreme Court doesn’t need to consider a challenge to a heartbeat bill in order to overturn Roe. </p>
<p>In fact, the Supreme Court gets to pick and choose the cases it hears and needs only four justices to vote to hear a case. That means it might decide to weigh in on abortion rights as soon as its next term. Almost any case, including several that are already pending, could become a vehicle for overturning Roe. </p>
<p>For example, the newly composed Supreme Court could decide to take up the constitutionality of laws in Ohio or Indiana banning abortions sought for particular reasons, such as fetal anomaly. Both laws have been <a href="https://www.usatoday.com/story/news/politics/2018/03/15/down-syndrome-abortion-ban-blocked/427408002/">blocked by federal courts</a>, and either could still be appealed to the Supreme Court. If the court decides to hear one of those cases, it could uphold the laws on the grounds that Roe was incorrect and a new, more relaxed legal standard should apply to abortion restrictions. </p>
<p>What’s more, <a href="https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe">10 states</a> including Wisconsin and West Virginia, actually still have pre-Roe abortion bans on the books. These laws weren’t being enforced as long as Roe was the law of the land. If Roe is overturned, it’s possible that prosecutors in those states would try to bring criminal charges against doctors performing abortions, without even waiting for the legislature to pass a new law banning abortion. </p>
<p><a href="https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe">Four additional states</a> – North Dakota, South Dakota, Louisiana and Mississippi – have passed so-called “trigger laws” providing that abortion will become illegal the moment Roe is overruled. </p>
<p>Even in the absence of laws such as these, though, many state legislatures won’t hesitate to enact new abortion bans immediately. In fact, the Center for Reproductive Rights considers only <a href="https://www.reproductiverights.org/what-if-roe-fell">19 states to be relatively low-risk</a> for passing new abortion bans if Roe fell. </p>
<p>Of these 19, a few states are expected to take an active role in protecting abortion access in the absence of Roe. This means that women in Massachusetts continue to have one set of laws, and women in Mississippi will have a very different set. </p>
<p>Still, it’s important not to lose sight of the bigger picture. Whether or not Roe goes, the Supreme Court is likely to shift far to the right on reproductive rights — potentially affecting not just abortion, but access to contraception as well. One sign of this shift is Kavanaugh’s record <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/425C0AE29F10AFD785257E4B00767BF5/$file/13-5368.pdf">of siding with employers seeking to block employees’ access to birth control</a> under the ACA. </p>
<p>And, even if Roe isn’t overturned, it may continue to exist in name only, as the Supreme Court is likely to uphold every sort of restriction short of an outright abortion ban. </p>
<p>In short, there are many possible paths for Roe v. Wade in the future, and significant questions remain. One thing is almost certain, though – the court will continue to erode the power of Roe.</p>
<p><em>This story has been updated from <a href="https://theconversation.com/could-roe-v-wade-be-overturned-73235">a version</a> that originally ran on March 19, 2017.</em></p><img src="https://counter.theconversation.com/content/99248/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>B. Jessie Hill receives funding from an anonymous foundation that supports research on reproductive health care. She is a volunteer attorney for the ACLU of Ohio and litigates challenges to abortion restrictions. </span></em></p>A law professor writes “the future of Roe v. Wade looks tenuous.” That gives more power to the states – including four that have passed “trigger laws” to outlaw abortion if Roe is overturned.B. Jessie Hill, Associate Dean for Academic Affairs and Judge Ben C. Green Professor of Law, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/996322018-07-24T10:29:26Z2018-07-24T10:29:26ZMoney, politics and Justice Anthony Kennedy: Revisiting Citizens United<p>The decision in <a href="https://www.oyez.org/cases/2008/08-205">Citizens United v. Federal Election Commission</a>, issued ten years ago, is one of retired U.S. Supreme Court Justice Anthony Kennedy’s most maligned rulings. <a href="https://www.thenation.com/article/artificial-persons/">Many condemn</a> the opinion for treating corporations as people, money as speech, and elections as commodities to be sold to the highest bidder. </p>
<p>President Barack Obama <a href="https://www.nytimes.com/2010/01/29/us/politics/29scotus.html">lambasted</a> Citizens United in a State of the Union address. During her 2016 presidential campaign, Hillary Clinton <a href="https://www.economist.com/democracy-in-america/2016/08/16/why-clintons-plan-to-scrap-citizens-united-wont-work">promised</a> to nominate a Supreme Court justice who would overturn it. </p>
<p>Citizens United does not deserve such scorn. </p>
<p>As <a href="http://www.law.fsu.edu/our-faculty/profiles/morley">an election law scholar</a> who has litigated campaign finance cases, <a href="https://www.law.cornell.edu/supremecourt/text/12-536">including in the U.S. Supreme Court</a>, I believe Citizens United is a straightforward application of free speech principles and, like Kennedy’s jurisprudence as a whole, reflects a balance of conservative and liberal legal conclusions. </p>
<h2>The history</h2>
<p>Citizens United was a non-profit corporation that received “a small portion of its funds” from for-profit corporations. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=943&fit=crop&dpr=1 600w, https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=943&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=943&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1186&fit=crop&dpr=1 754w, https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1186&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1186&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">David Bossie, leader of Citizens United and producer of ‘Hillary: The Movie’</span>
<span class="attribution"><span class="source">AP Photo/Evan Vucci</span></span>
</figcaption>
</figure>
<p>In 2008, while Hillary Clinton was seeking the Democratic Party’s nomination for President, it released a documentary called <a href="http://www.hillarythemovie.com/">Hillary: The Movie</a>. The film featured numerous interviews with people who, <a href="https://supreme.justia.com/cases/federal/us/558/310/">the Supreme Court explained</a>, were “quite critical” of her. </p>
<p>Citizens United wanted to pay a cable company $1.2 million to make the documentary available for free, on demand, to the company’s subscribers. It also wished to air paid advertisements for the movie. </p>
<p><a href="https://www.law.cornell.edu/uscode/text/52/30118">Federal law</a>, however, prohibited corporations from spending money to expressly advocate a federal candidate’s election or defeat. This restriction applied to Hillary: The Movie because Citizens United had accepted some corporate funding and the film amounted to express advocacy. </p>
<p>Citizens United sued, arguing these restrictions violated its First Amendment rights.</p>
<h2>The ruling</h2>
<p><a href="https://supreme.justia.com/cases/federal/us/558/310/#tab-opinion-1963051">Kennedy’s opinion</a> in Citizens United blended conservative concern for free speech with a more liberal focus on transparency. </p>
<p>The conservative majority held corporations have the right to create and distribute political advertisements and other election-related communications such as Hillary: The Movie. </p>
<p>All the justices except Clarence Thomas joined in the final part of the opinion, which held that the government may require speakers like Citizens United to publicly report such expenditures and include disclaimers on their election-related communications, revealing who paid for them. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=833&fit=crop&dpr=1 600w, https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=833&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=833&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1047&fit=crop&dpr=1 754w, https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1047&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1047&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Justice Anthony Kennedy in 2010.</span>
<span class="attribution"><span class="source">AP Photo/Pablo Martinez Monsivais</span></span>
</figcaption>
</figure>
<p>Citizens United ended unnecessary restraints on political expression and gave voters access to a wider range of election-related information. It also afforded corporations a fair chance to present their perspective on elections that could have tremendous consequences for them. </p>
<p>Corporations are taxed and subject to government regulation. They play vital roles in providing the jobs, goods and services that drive our economy. It is only fair to allow corporations to voice their institutional views about candidates for public office — views that voters, of course, are free to completely disregard. </p>
<h2>Money, speech and collective political action</h2>
<p>Critics claim Citizens United allowed corporate America to buy elections. </p>
<p>The central question in the case, however, was whether corporations could spend money to engage in election-related speech. <a href="https://www.law.cornell.edu/uscode/text/52/30118">It remains illegal</a> for corporations to contribute money to candidates, political parties or traditional political action committees (PACs). </p>
<p>Moreover, most of the principles Citizens United relied upon were established in cases decided decades earlier. </p>
<p>The 1976 landmark case <a href="https://caselaw.findlaw.com/us-supreme-court/424/1.html">Buckley v. Valeo</a> set forth the constitutional principles governing modern campaign finance law. It reaffirmed that election-related speech lies at the heart of the First Amendment. And it recognized that, while money is not literally speech, it is essential to virtually every form of political speech. </p>
<p>Political signs require poster board and markers. Political flyers must be duplicated. Political advertisements cost money to broadcast or publish. </p>
<p>Limiting political spending, the Supreme Court explained, reduces “the number of issues discussed, the depth of their exploration, and the size of the audience reached.” The government may not limit political expression, the court emphasized, just because it costs money. Rather, such “independent expenditures” remain pure political speech entitled to maximum constitutional protection. </p>
<p>In the decades after Buckley, the Supreme Court held that people retain this right to engage in pure election-related expression when they join together to achieve political goals collectively. Groups such as <a href="https://caselaw.findlaw.com/us-supreme-court/470/480.html">political action committees</a>, <a href="https://caselaw.findlaw.com/us-supreme-court/518/604.html">political parties</a> and <a href="https://caselaw.findlaw.com/us-supreme-court/479/238.html">certain non-profit corporations</a> have the First Amendment right to spend money to fund election-related speech without government limits. Several liberal justices joined in many of these rulings. </p>
<p>Citizens United extended to for-profit corporations the same constitutional right to advocate for or against candidates that other types of private associations - as well as the corporations’ stockholders, directors, executives and employees - already possessed.</p>
<h2>A trickle, not a flood</h2>
<p>Critics proclaimed that Citizens United would open the floodgates to a deluge of corporate political spending. </p>
<p>They were wrong. </p>
<p>University of New Mexico <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2300930">Professor Wendy Hansen and her co-authors discovered</a> that, in the 2012 election, “not a single Fortune 500+ company” made independent expenditures. And only nine Fortune 500 companies made contributions to SuperPACs, totaling less than $5 million.</p>
<p>This trend persisted in ensuing elections. The <a href="https://www.ced.org/pdf/TCB-CED-The-Landscape-of-Campaign-Contributions.pdf">Conference Board’s Committee for Economic Development reports</a> that only 10 corporations made independent expenditures in 2016, and they totaled less than $700,000. </p>
<p>Such results are unsurprising. Most major corporations do not want to alienate up to half their potential customers by spending millions of dollars publicly aligning themselves with a particular candidate or political party. </p>
<h2>What about SuperPACs?</h2>
<p>A more substantial objection is that Citizens United <a href="http://www.slate.com/articles/news_and_politics/jurisprudence/2011/10/citizens_united_how_justice_kennedy_has_paved_the_way_for_the_re.html">paved the way for “SuperPACs.”</a> </p>
<p>SuperPACs are political committees that only fund election-related speech and activities without input from candidates. Because SuperPACs cannot contribute to candidates or political parties, <a href="https://transition.fec.gov/law/litigation/speechnow_ac_opinion.pdf">people may give</a> unlimited amounts of money to them. </p>
<p>Citizens United didn’t create the principles that led to SuperPACs; Buckley did. SuperPACs simply let people join together to engage in the same political speech and spending they were already free, under Buckley, to perform on their own. </p>
<p>Kennedy’s opinion in Citizens United did not cause a corporate Armageddon for our political system. It was a victory for the fundamental First Amendment right of all Americans, individually or collectively through corporations, to engage in pure political speech about federal elections. </p>
<p><em>This is an updated version of an article originally published on July 24, 2018.</em></p><img src="https://counter.theconversation.com/content/99632/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael T. Morley does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Citizens United, issued 10 years ago, is one of the most controversial and scorned rulings in modern Supreme Court history. Is that condemnation undeserved?Michael T. Morley, Assistant Professor of Law, Florida State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/994732018-07-07T12:44:21Z2018-07-07T12:44:21ZIs the Supreme Court’s legitimacy undermined in a polarized age?<figure><img src="https://images.theconversation.com/files/226361/original/file-20180705-122259-13x5ia0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S. Supreme Court</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>As the United States Senate readies to vote on the nomination of Judge Brett Kavanaugh to be the next Supreme Court justice, I am reminded of its recent <a href="https://www.nytimes.com/2017/04/07/us/politics/neil-gorsuch-supreme-court.html">confirmation of Justice Neil Gorsuch</a>.</p>
<p>The Gorsuch vote was unprecedented in the history of the country. Never before had a “minority president” named a “minority justice.”<br>
<a href="https://internet2.trincoll.edu/FacProfiles/Default.aspx?fid=1261609">I’m a scholar</a> of the presidency and the Supreme Court. In a recently published article in the <a href="http://studentorgs.kentlaw.iit.edu/cklawreview/">Chicago-Kent Law Review</a>, I consider the concepts of a “minority president” and a “minority justice” in relation to presidential appointments to the High Court for much of American history.</p>
<p>Here’s what I mean by these terms. </p>
<h2>Court out of step with America?</h2>
<p>Since Donald Trump <a href="http://www.politifact.com/wisconsin/statements/2016/nov/21/reince-priebus/despite-losing-popular-vote-donald-trump-won-elect/">lost the popular vote</a> in the 2016 election, he is, by definition, a minority president, elected by a minority of the voters. </p>
<p>Similarly, I define a “minority justice” as a nominee who won confirmation with the support of a majority of senators, but senators who did not represent a majority of voters.</p>
<p>Consider Gorsuch. He was supported by a majority of senators – <a href="https://www.nytimes.com/interactive/2017/04/07/us/politics/gorsuch-confirmation-vote.html">51 Republicans and three Democrats</a>. But the votes earned by those 54 senators only added up to a total of <a href="https://uselectionatlas.org/">54,557,602</a>.</p>
<p>The 45 senators who opposed Gorsuch, all Democrats, collected <a href="https://uselectionatlas.org/">76,507,374 </a>votes in their most recent elections – a nearly 22 million-vote difference.</p>
<p>There are now three Supreme Court justices – Clarence Thomas, Samuel Alito and Gorsuch – that fit the description of a “minority justice.” They are the only three in the nation’s history. And they are the most conservative members of the current court. </p>
<p>If the Senate narrowly confirms Kavanaugh largely along partisan lines as most expect, he will become the fourth “minority justice” – the second appointed by a “minority president.” </p>
<p>That raises a question that goes to the heart of the Supreme Court’s legitimacy in our democracy: Will this be a court out of line with America? </p>
<p>If so, what might that mean for the country’s politics and law? Indeed, for the nation itself?</p>
<h2>Seldom far from the mainstream</h2>
<p>To be sure, the framers of the Constitution purposely decided to provide <a href="https://www.senate.gov/artandhistory/history/common/briefing/Constitution_Senate.htm#1">each state with two senators</a>, knowing that those senators from states with smaller populations would represent fewer – at times far fewer – citizens than those with larger ones. Today, for example, California’s population is close to 40 million while Wyoming’s is less than 600,000. Yet both states have two senators.</p>
<p>This arrangement was a central aspect of the <a href="https://www.senate.gov/artandhistory/history/minute/A_Great_Compromise.htm">Great Compromise,</a> which helped convince representatives from sparsely populated states — fearful of being ignored by an alliance of the heavily populated states — to back the new Constitution.</p>
<p>Nevertheless, since the popular vote began to matter in the election of 1824, a minority president had never succeeded in appointing a minority justice. Indeed, until this century, even for presidents who won the popular vote by a large margin, significant Senate resistance more often than not <a href="https://www.loc.gov/law/find/court-withdrawn.php">doomed a nominee to the court</a>. </p>
<p>This might help to explain why political scientist <a href="https://books.google.com/books?id=UJXQ4N5oZZQC&pg=PA261&lpg=PA261&dq=lagged+far+behind+nor+forged+far+ahead+of+America&source=bl&ots=2uVXAZCTA4&sig=D2j32feRdEHfxTopMAQA7fvvm-8&hl=en&sa=X&ved=0ahUKEwik05OHmYjcAhWlpFkKHSIfAbIQ6AEIODAB#v=onepage&q=lagged%20far%20behind%20nor%20forged%20far%20ahead%20of%20America&f=false">Robert McCloskey concluded</a> in 1960 that the court had rarely “lagged far behind nor forged far ahead of America” and that the justices had “seldom strayed very far from the mainstreams of American life.” </p>
<h2>Might politics and the courts collide?</h2>
<p>Things are different today. We live in a period of <a href="http://www.people-press.org/interactives/political-polarization-1994-2017/">deep political polarization</a>. This shift in American politics raises some important questions about the Supreme Court’s legitimacy in our democracy. </p>
<p>In the past, political majorities at the polls have supported significant doctrinal shifts by the court, even if the specific rulings have been controversial. </p>
<p>In other words, as McCloskey and fellow political scientist Robert Dahl observed, since one party typically dominated during an extended period of time, the justices – because they were products of that enduring regime – generally advanced the regime’s interests in the long term. To put it simply, for much of American history, the court followed the <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/emlj6&div=20&id=&page=">election returns.</a></p>
<p>For example, the 1905 decision of <a href="https://www.oyez.org/cases/1900-1940/198us45">Lochner v. New York</a>, which struck down state legislation designed to protect workers via the court’s <a href="https://constitutioncenter.org/blog/lochner-v-new-york-fundamental-rights-and-economic-liberty">freedom of contract doctrine</a>, was a product of the Republican regime that dominated American politics at the time. </p>
<p>Similarly, the <a href="https://www.history.com/topics/new-deal">New Deal Democratic regime</a> ushered in by the landslide election of Franklin D. Roosevelt in 1932 ultimately provided the political basis for another divisive decision, <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a>, which found that supposedly “separate-but-equal” segregated schools <a href="http://press.uchicago.edu/ucp/books/book/chicago/R/bo3613113.html">were unconstitutional</a>. </p>
<p>Today, no such majority exists.</p>
<p>The popular vote for president and the Electoral College results have twice in the last five presidential elections <a href="http://www.latimes.com/nation/la-na-pol-electoral-college-20161110-story.html">been out of alignment</a>. And the Democratic presidential nominee has <a href="https://ropercenter.cornell.edu/polls/us-elections/popular-vote/">won the popular vote</a> in six of the last seven presidential elections (from 1992 to 2016), yet Republican presidents have <a href="https://www.supremecourt.gov/about/biographies.aspx">appointed a majority</a> of the sitting justices. </p>
<p>Given this recent divide between the popular vote and the electoral vote, it seems reasonable to consider the possibility of the alternative to McCloskey’s conclusions – of a court that consistently diverges from American majorities on the most pressing issues of the day.</p>
<p>After all, Supreme Court justices <a href="http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about">have lifetime appointments</a> and typically stay on the bench for many years, even decades. Their imprint on the law can be enduring and their legitimacy, conferred in part by the confirmation process, helps ensure their place in our democracy. </p>
<p>With the addition of a Justice Kavanaugh, many court observers suspect the 1973 ruling, known popularly as <a href="https://supreme.justia.com/cases/federal/us/410/113/case.html">the “Roe” case</a>, which affirms women’s right to terminate an unwanted pregnancy, will be a prime target of the conservative majority. </p>
<h2>Will Roe stand?</h2>
<p>While Roe has been a deeply divisive decision since the day it was announced, the Republican in the White House at the time — Richard Nixon — <a href="https://www.nytimes.com/2009/06/24/us/politics/24nixon.html">neither publicly denounced it</a> nor <a href="http://press.uchicago.edu/ucp/books/book/chicago/N/bo12079563.html">sought to overturn it</a>. And three of his four appointees to the court <a href="http://landmarkcases.org/en/Page/661/Summary_of_the_Decision">joined the 7-2 majority</a>, including the opinion’s <a href="http://prospect.org/article/conservative-liberal">author Justice Harry Blackmun</a>. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">President Nixon, flanked by outgoing Chief Justice Earl Warren, left, and incoming Chief Justice Warren Burger, right.</span>
<span class="attribution"><span class="source">AP Photo</span></span>
</figcaption>
</figure>
<p>Of course, Nixon’s Republican successor, Ronald Reagan, oversaw a Justice Department that repeatedly asked the Court to reverse itself on <a href="https://www.emeraldinsight.com/doi/abs/10.1108/S1059-433720160000070009">Roe</a>. But ultimately a majority of the justices refused to go along, including two of Reagan’s three additions to the court, Sandra Day O'Connor and the now departing Anthony Kennedy.</p>
<p>Today, polls show significant opposition to overturning the decision. </p>
<p>For example, according to a recent <a href="https://www.kff.org/health-reform/press-release/poll-two-thirds-of-americans-dont-want-the-supreme-court-to-overturn-roe-v-wade/">Kaiser Family Foundation poll</a>, 67 percent of Americans are opposed to the Court doing so, including 43 percent of Republicans. <a href="https://poll.qu.edu/national/release-detail?ReleaseID=2553">A Quinnipiac poll</a> supported this conclusion, finding 63 percent of respondents agreed with Roe while just 31 percent did not. </p>
<p>It would be best if a court making a determination on the future of Roe could do so with the utmost legitimacy. But given the state of our politics today, that is a near impossibility. </p>
<p>According to the <a href="https://poll.qu.edu/national/release-detail?ReleaseID=2553">same Quinnipiac poll</a>, a majority of Americans already believe that the court reaches its rulings based mainly on politics rather than law – 50 versus 42 percent.</p>
<p>A conservative court that quickly discards Roe will likely further that belief, given the central role opponents of the decision have played in mobilizing voters to support Republican candidates like Donald Trump. The result may be a further erosion of the court’s legitimacy, and a deepening of the partisan divide in America.</p>
<p><em>This is an updated version of an article originally published on July 7, 2018; it includes a correction to the number of votes cast in the most recent elections for senators who voted to confirm, or oppose, Neil Gorsuch.</em></p><img src="https://counter.theconversation.com/content/99473/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kevin J. McMahon does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Democrats won the popular vote in six of the last seven presidential elections, but Republican presidents have appointed a majority of the sitting justices. Is the court out of step with America?Kevin J. McMahon, Professor of Political Science & Director of the Graduate Program in Public Policy, Trinity CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/812392018-07-03T10:34:08Z2018-07-03T10:34:08ZJustice Kennedy’s LGBTQ legacy may be short-lived<figure><img src="https://images.theconversation.com/files/225836/original/file-20180703-116123-ycvskx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In this April 28, 2015 file photo, demonstrators stand in front of a rainbow flag of the Supreme Court in Washington as the Supreme Court was set to hear historic arguments in cases that could make same-sex marriage. (AP Photo/Jose Luis Magana, File)</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/House-Gay-Rights/39d5c27b5c9d451ea2ab4386a8a4e3e6/1/0">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p>Kennedy’s departure from the Supreme Court has, understandably, prompted widespread concern about Roe v. Wade and abortion rights. Less salient but equally at risk is the court’s progress on LGBTQ rights. </p>
<p>While he was on the court, Kennedy was the decisive vote for the court’s 5-4 pro-gay rights rulings. He wrote each of the court’s landmark gay rights decisions, outlawing bans on <a href="https://www.law.cornell.edu/supct/html/02-102.ZS.html">same-sex sexual conduct</a>, <a href="https://www.law.cornell.edu/supct/html/94-1039.ZO.html">LGBTQ political advocacy</a> and same-sex marriage at the <a href="https://www.law.cornell.edu/supremecourt/text/14-556">state</a> and <a href="https://www.law.cornell.edu/supct/cert/12-307">federal</a> level. Kennedy is the voice of the court’s gay rights doctrine. </p>
<p>Having tracked <a href="https://washingtonmonthly.com/magazine/mayjune-2013/under-the-gaydar">judicial progress</a> on <a href="https://washingtonmonthly.com/2016/03/15/adoptive-gay-parents-win-another-supreme-court-victory-mostly/">gay rights</a> over the last decade, <a href="https://scholar.google.com/citations?hl=en&view_op=list_works&gmla=AJsN-F7kEX2VhC5eHPTq5G1o8eZ9vY8TpHis0_ZZfWNs5O7x_L0-oV2A4uwYZ9mrRFTGxENf4p7zx9GlwhMxAZ7IF6mFi1w7go_-wW8_uACYqVxzM8qgWYwzTWWs1cwocU9KLdIfh0iG&user=u07SE7gAAAAJ&gmla=AJsN-F7pAyUL6j3RYx9Y_L-6IUJWbRusYuMCJtNCJ_INd6HpTYdy4s2m2_K1vZMDkVTl0xYtlaBhCMRs5s3BQW2dV2GsY_2LvtVUlIvPAl0TXGBe4h03m7E&sciund=9514752601823854059">I’d</a> argue that Kennedy’s retirement puts this doctrine, and the movement, <a href="https://washingtonmonthly.com/2017/01/31/how-trump-will-roll-back-obamas-progress-on-gay-rights/">in jeopardy</a>. Although his rulings on same-sex relationships have ushered in new freedoms for lesbian and gay couples, they rest on fragile constitutional arguments. With Kennedy’s retirement, there is greater opportunity for anti-gay activists to dismantle the court’s tenuous legal framework supporting gay rights.</p>
<h2>An unlikely advocate</h2>
<p>Prior to his ascent to the court, few could have predicted that Justice Kennedy would spearhead a judicial revolution for LGBTQ rights. Kennedy joined the court in 1988 as a Reagan appointee whose only decision on gay rights, written during his tenure on the 9th Circuit Court of Appeals, <a href="https://web.stanford.edu/%7Emrosenfe/Beller_v_Middendorf_9th_circ_1980.pdf">narrowly upheld military regulations prohibiting “homosexual conduct</a>.” </p>
<p>In 1996, less than a decade after his appointment to the court, Kennedy would author his first of multiple Supreme Court decisions protecting the rights of lesbians and gay men. </p>
<p>The 1996 case, <a href="https://www.law.cornell.edu/supct/html/94-1039.ZO.html">Romer v. Evans</a>, involved a constitutional amendment enacted by Colorado voters in 1992. The amendment barred any state or local public official from including sexual orientation in local nondiscrimination laws. If upheld, the amendment would have rendered any discrimination against gays or lesbians in housing, employment and public accommodations both legal and untouchable. The state argued that they were protecting the “liberties of landlords or employers who have personal or religious objections to homosexuality” and were doing “no more than deny[ing] homosexuals special rights.” </p>
<p>Kennedy authored the 6-3 decision to overturn the amendment, arguing that the state’s reasoning failed to meet even basic legal requirements. The policy, Kennedy stated, was “born of animosity toward the class of persons affected” and rendered members of the gay community “unequal to everyone else.” </p>
<p>For the gay community, Romer marked what New York Times reporter <a href="https://archive.nytimes.com/www.nytimes.com/specials/issues/rights/rigdepth/0521scotus-gays.html">Linda Greenhouse</a> described as a “historic shift in the Court’s response to anti-gay discrimination,” stopping other states from following suit. It also provided “a strong statement” against anti-gay discrimination, because it was delivered by “a conservative member of a basically conservative Court.” Yet, in overturning the Colorado amendment, Kennedy rested his decision on the easiest of judicial standards – arguing that the state failed to provide any rational reason for the ban.</p>
<p>The court could have argued instead that members of the LGBTQ community have historically been excluded from a wide range of state protections – and have far more frequently been the targets of hostile policy actions. The court treats policies that target historically excluded communities as “suspect” and makes it more difficult for policies to prevail.</p>
<p>Policy actors who target historically excluded groups need to come up with a significant reason for creating the policy. They must also prove that there is no other way to achieve their policy goal. </p>
<p>More importantly, once a group is treated as historically excluded in court precedent any policy that targets the group will be evaluated with this more challenging standard of judicial scrutiny.</p>
<p>While Kennedy’s rulings have struck down important limitations on lesbian and gay rights, he has resisted treating the LGBTQ community as historically excluded – leaving them with a far less certain set of legal protections.</p>
<h2>Relationships and marriage</h2>
<p>In 2003, Kennedy led the court’s majority in <a href="https://www.law.cornell.edu/supct/html/02-102.ZS.html">Lawrence v. Texas</a>, overturning a Texas statute that criminalized same-sex sexual intimacy. In doing so, the court also overturned it’s prior 1986 decision in <a href="https://www.law.cornell.edu/supremecourt/text/478/186">Bowers v. Hardwick</a>, which upheld similar legislation in Georgia. Kennedy admonished the Bowers court for its “failure to appreciate the extent of the liberty at stake” and described bans on same-sex sexual conduct as “an attempt to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” </p>
<p>Bans on same-sex sexual intimacy licensed private citizens to treat lesbians and gay men as criminal. Free from the presumption of criminality, lesbians and gay men now had legal leverage to live openly and to fight for full equality.</p>
<p>Although the decision provided a legal mechanism for decriminalizing same-sex couples, Kennedy again resisted adopting the “historically excluded” framework. Instead, Kennedy argued that same-sex couples were being deprived, in this one instance, of important constitutional liberties. </p>
<p>Kennedy’s decisions on marriage equality provided similarly important but limited victories.</p>
<p>On June 26, 2013, Kennedy dismantled one of two barriers to marriage equality – a federal ban on same-sex marriage that prevented legally married same-sex couples from receiving the same federal benefits and protections offered to heterosexual married couples. In <a href="https://www.law.cornell.edu/supct/cert/12-307">U.S. v. Windsor</a>, Kennedy struck down the federal ban arguing that its only purpose was to “harm a politically unpopular group.” </p>
<p>State and federal judges used Windsor to overturn similar bans in more than 30 states. </p>
<p>Two years later, in <a href="https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">Obergefell v. Hodges</a>, Kennedy led the court in overturning the remaining state-level bans. Kennedy called specific attention to the ways in which bans on same sex marriage “harm and humiliate the children of same-sex couples” and impose on them the “significant material costs of being raised by unmarried parents.”</p>
<p>Windsor and Obergefell changed the lives of same-sex couples and their children. Children now have the security of being legally tied to both of their parents. Spouses can access critical health care or insurance benefits. And, in many communities, same-sex headed households have become more common and less vilified.</p>
<p>Yet, again, Kennedy sidestepped the question of historical exclusion, potentially limiting the reach of the decisions and weakening their capacity to withstand coming legal challenges.</p>
<h2>Legal challenges remain</h2>
<p>Kennedy’s gay rights doctrine is relatively new and still highly contested. </p>
<p>For instance, <a href="https://www.texastribune.org/2018/06/26/fifteen-years-after-landmark-gay-rights-win-same-sex-couples-face-anot/">Texas’s ban on same-sex sexual conduct</a> is still on the books, despite Lawrence. And, the <a href="https://www.texasobserver.org/texas-gay-marriage-benefits-scotus-supreme-court/">Texas Supreme Court</a> is still questioning whether Obergefell requires the state to provide benefits to married same-sex couples. </p>
<p>Wedding service providers are refusing to serve same-sex couples and are making headway in court. Kennedy recently <a href="https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf">upheld the rights of a Colorado baker</a> to refuse to bake a wedding cake for a same-sex couple. He argued that compelling the baker “to exercise his artistic talents to express a message” that violated his religious beliefs could present a First Amendment problem. In the hands of a more conservative future court, that precedent could provide ammunition for the increasing <a href="https://www.hrw.org/report/2018/02/19/all-we-want-equality/religious-exemptions-and-discrimination-against-lgbt-people">number of states</a> that are passing legislation allowing small businesses to refuse to work with same-sex couples on religious grounds.</p>
<p>Perhaps more importantly, there are many challenges to equality untouched by Kennedy’s rulings. This reality is a byproduct of his resistance to treating the LGBTQ community as historically excluded for the purposes of court doctrine. Discrimination against LGBTQ individuals in <a href="https://www.brookings.edu/blog/brown-center-chalkboard/2018/04/18/lgbtq-students-face-discrimination-while-education-department-walks-back-oversight/">education</a>, <a href="http://outandequal.org/2017-workplace-equality-fact-sheet/">employment</a>, housing and public accommodations is still legal in more than <a href="http://www.lgbtmap.org/equality-maps/non_discrimination_laws">20 states</a>. And <a href="http://www.ncsl.org/research/education/-bathroom-bill-legislative-tracking635951130.aspx">recent legislative attacks</a> targeting transgender individuals suggest that anti-LGBTQ activity is still prevalent in many communities. </p>
<p>There is no doubt that Justice Kennedy’s legacy has brought about an era of unprecedented – even unimagined – rights for gays and lesbians. The question is will his legacy persist and grow without him on the bench?</p><img src="https://counter.theconversation.com/content/81239/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alison Gash does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A legal scholar explains why Kennedy’s opinions on same-sex relationship rest on fragile constitutional grounds.Alison Gash, Associate Professor of Political Science, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/991692018-07-03T10:33:48Z2018-07-03T10:33:48ZWill Trump’s Supreme Court justices show independence from him?<figure><img src="https://images.theconversation.com/files/225606/original/file-20180701-117430-1v5346z.jpg?ixlib=rb-1.1.0&rect=38%2C23%2C5105%2C2630&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Trump, Neil Gorsuch and wife Marie Louise and Justice Anthony Kennedy</span> <span class="attribution"><span class="source">AP/Alex Brandon</span></span></figcaption></figure><p>Supreme Court Justice Anthony Kennedy’s retirement has sparked much speculation about the court’s future decisions on <a href="https://www.nytimes.com/2018/06/27/us/politics/anthony-kennedy-career.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer">abortion and gay rights</a>.</p>
<p>But what about the retirement’s effects on the future of a possible litigant before the court: President Trump himself? </p>
<p><a href="https://www.npr.org/2018/03/03/590616771/trump-and-the-parameters-of-executive-privilege">Several</a> <a href="https://www.usatoday.com/story/opinion/2018/06/05/executive-privilege-may-trump-all-editorials-debates/35730809/">possible</a> <a href="https://www.vox.com/policy-and-politics/2017/7/21/16007934/trump-president-pardon-himself-limits-power-constitution">constitutional</a> crises are brewing over Robert Mueller’s investigation into Russian interference, collusion and obstruction of justice, some of which – such as the president’s power to pardon himself – could raise legal questions that only the Supreme Court can answer. </p>
<p>An aspect of the president’s personality is relevant here. Trump, to use his own words, “<a href="https://www.politico.com/magazine/story/2018/03/06/donald-trump-loyalty-staff-217227">needs loyalty</a>.” It would not be an insult to say Trump <a href="https://www.ft.com/content/3148a4c6-7c51-11e7-9108-edda0bcbc928">views the world in a transactional way</a>. </p>
<p>So with Kennedy’s retirement, the question becomes, what will President Trump expect of his appointee once he’s the one before the Court?</p>
<h2>One good turn…</h2>
<p>President Trump seems to operate under the <a href="https://www.justsecurity.org/41861/loyalty-quid-pro-quo-defining-themes-comeys-conversations-trump/">quid pro quo</a> principle: I do for you and then you do for me. He may thus view favorable votes by his Supreme Court nominees in any future dispute with Mueller as another perk of his power to nominate them. </p>
<p>Trump certainly views protecting the president as part of <a href="http://time.com/5316410/donald-trump-endorsements-loyalty/">his attorney general’s job description</a>. He has repeatedly expressed anger at Attorney General Jeff Sessions’ decision to recuse himself in the Russia investigation, saying that he <a href="https://www.nytimes.com/2018/01/04/us/politics/trump-sessions-russia-mcgahn.html">expected Sessions to protect him</a>.</p>
<p>There’s reason to think Trump views judicial appointments the same way. </p>
<p>As a candidate, Trump said that a <a href="http://thehill.com/blogs/ballot-box/presidential-races/282172-trump-doubles-down-on-judge-attacks-hes-a-mexican-were">Mexican-American judge ruled against</a> him in a lawsuit because he was planning to build a wall on the Mexican border. His reaction demonstrated a belief that <a href="https://blog.harvardlawreview.org/will-the-federal-judiciary-remain-a-check-and-balance-after-trump/">judges often rule on the basis of bias</a>.</p>
<p>Indeed, it seems the only point at which Judge Neil Gorsuch’s confirmation to the Supreme Court was at risk was when <a href="https://www.washingtonpost.com/politics/trump-reportedly-considered-rescinding-gorsuchs-nomination/2017/12/18/ad2b3b68-e1c7-11e7-9eb6-e3c7ecfb4638_story.html?noredirect=on&utm_term=.89d90d09bb48">he criticized President Trump’s statements about the federal judiciary in a meeting with a senator</a>. When Trump got wind of the critique, he was apparently tempted to pull the nomination altogether out of fears <a href="http://nymag.com/daily/intelligencer/2017/12/trump-nixing-gorsuch-wouldve-been-crazier-than-firing-comey.html">Gorsuch would prove himself disloyal</a>, though he declined to do so. </p>
<p>So the president won’t likely be a proponent of judicial independence. But what about the nominee? How can senators and the American public learn if he or she will put the law above loyalty to the president? </p>
<h2>How to find independence</h2>
<p>One place you shouldn’t look for clues about a nominee’s judicial independence are confirmation hearings. They are, almost every serious person agrees, <a href="https://www.washingtonpost.com/powerpost/plenty-of-drama-is-coming-on-the-next-supreme-court-nominee--but-not-in-senate-questioning/2018/06/29/caa8b3e6-7bbe-11e8-aeee-4d04c8ac6158_story.html?noredirect=on&utm_term=.eedf6631f396">a joke</a>. </p>
<p>Apparently, being a Supreme Court Justice is too good a job for nominees to introduce even a modicum of risk to their chances. That means the nominees don’t say anything whatsoever about what they really think. </p>
<iframe width="100%" height="330" src="https://www.c-span.org/video/standalone/?c4738401/elena-kagan-supreme-court-confirmation-hearing" allowfullscreen="allowfullscreen" frameborder="0"></iframe>
<p>For example, 15 years before her own nomination to the court, Justice Elena Kagan <a href="https://www.nytimes.com/2010/05/12/us/politics/12court.html">argued in a law review article</a> that confirmation hearings were a “farce.” She wrote that “it is an embarrassment that senators do not insist” that a nominee “disclose their views on important legal issues.” </p>
<p>During <a href="https://www.congress.gov/111/chrg/shrg67622/CHRG-111shrg67622.htm">her own Senate hearings</a>, when Sen. Herb Kohl – a Democrat – offered Kagan the chance to disclose her own views, she demurred, declining to answer the very questions she had said should be <a href="https://www.c-span.org/video/?294264-2/kagan-confirmation-hearing-day-2-part-1">put before nominees</a>. </p>
<p>In response to this kabuki dance, Sen. Kohl – a member of the same party as the nominating administration – laughed. He muttered an incredulous “My, oh my,” and moved on to <a href="https://www.congress.gov/111/chrg/shrg67622/CHRG-111shrg67622.htm">antitrust-related</a> questions that didn’t earn any real answers either. Despite Kagan’s previously stated views, once she was a Supreme Court nominee – and had the chance to choose substance over farce – she took farce. Other recent nomination hearings, including <a href="https://www.sfgate.com/politics/article/Alito-offers-few-hints-on-how-he-would-rule-2524302.php">Justice Samuel Alito’s</a> and <a href="https://www.yahoo.com/news/gorsuch-frustrates-democrats-at-confirmation-hearing-015048427.html">Justice Gorsuch’s</a>, were similarly substance-free.</p>
<p>So you should feel free to ignore questions and answers during the confirmation process about whether the nominee will be independent regarding any Trump-related issues that might come to the court. </p>
<p>This question — whether a nominee will be loyal to the president instead of the Constitution — is always asked. Only a nominee who didn’t want the job would say, “Well, I wouldn’t have the job without the president’s nomination. So of course I’m going to consider returning the gift when I get the chance.”</p>
<h2>The law is their master</h2>
<p>A more fruitful place to look is history. And the last time a president was fighting for his job in the Supreme Court, the justices he appointed chose loyalty to the law over loyalty to their nominator.</p>
<p>In 1974, President Nixon’s lawyers were in the <a href="https://constitutioncenter.org/blog/anniversary-of-united-states-v-nixon/">Supreme Court arguing</a> that tape recordings in Nixon’s office relating to the Watergate scandal were protected by executive privilege. </p>
<p>If Nixon had reason to bet on winning, it was because he had appointed four of the nine justices his counsel was arguing to — Justices Warren Burger, Harry Blackmun, Lewis Powell and William Rehnquist. In Nixon’s view, he had reason to be confident about his chances. As late as 1973, Nixon was referring to Burger, Blackmun and Powell <a href="http://nixontapeaudio.org/web/035-051.mp3">in a discussion with Burger as “my guys,”</a> calling them “great” and hoping to get yet “another one” on the court after Rehnquist. More disturbingly, they also discussed other cases then-pending before the court.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=416&fit=crop&dpr=1 600w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=416&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=416&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=523&fit=crop&dpr=1 754w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=523&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=523&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chief Justice Warren E. Burger, right, with President Richard Nixon.</span>
<span class="attribution"><span class="source">AP</span></span>
</figcaption>
</figure>
<p><a href="http://www.washingtonpost.com/wp-srv/politics/special/watergate/kleindienst.html">Rehnquist recused himself</a> because he had worked in the Nixon Justice Department just before being confirmed. However, the other three justices voted unanimously, along with their colleagues, just 16 days after oral argument, <a href="https://supreme.justia.com/cases/federal/us/418/683/case.html">holding that Nixon’s tapes were not constitutionally protected</a>. The court found that even though executive privilege was important, allowing Nixon to invoke it to protect his recordings would “cut deeply into the guarantee of due process of law” that it was the court’s “basic function” to protect.</p>
<p><a href="http://www.latimes.com/politics/la-na-pol-gorsuch-confirmed-20170407-story.html">Justice Gorsuch</a>, Trump’s first appointee to the court, has obviously not yet had the opportunity to rule on a claim directly brought by his nominating president, as did Justices Powell or Blackmun or Chief Justice Burger. So we can’t know for sure how he would react in a similar case. At this early date we don’t even know who Gorsuch’s new colleague and fellow Trump nominee will be. </p>
<p>And because justices’ votes are more ideologically reliable in contested cases now, the Supreme Court is a much <a href="https://home.gwu.edu/%7Ebartels/Bartels%20Chapter%20-%20Polarization%20Volume%20FINAL.pdf">more political place than it was in the 1970s</a>. </p>
<p>But a political Supreme Court is not necessarily one that lacks independence. It would be wrong to assume that justices in general, or President Trump’s justices in particular, will eventually rule in his favor if the issue arises. </p>
<p>The Supreme Court has shown in the past that it is better than that. And if the current court winds up being worse, we will all be the worse for it.</p><img src="https://counter.theconversation.com/content/99169/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Enrique Armijo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With Justice Anthony Kennedy’s retirement, President Trump will appoint a second justice to the Supreme Court. Will his nominees be impartial if Trump ends up in the court because of the Russia probe?Enrique Armijo, Associate Professor of Law and Associate Dean of Academic Affairs, Elon UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/991292018-06-29T10:34:53Z2018-06-29T10:34:53ZTrump’s choice to replace Justice Kennedy will likely be a white man, like his other court nominees<figure><img src="https://images.theconversation.com/files/225408/original/file-20180628-117371-1qxzrj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supreme Court Justice Anthony Kennedy.</span> <span class="attribution"><span class="source">AP Photo/Manuel Balce Ceneta</span></span></figcaption></figure><p>Justice Anthony Kennedy <a href="https://www.cnn.com/2018/06/27/politics/kennedy-retirement-donald-trump/index.html">announced on June 27</a> that he will retire from the U.S. Supreme Court, giving President Donald Trump the opportunity to appoint a second justice.</p>
<p>Trump has stated that he will choose from the same list of <a href="https://www.cbsnews.com/news/trumps-supreme-court-justice-list-justice-kennedy-retirement-president-replace-list-of-25-2018-06-27/">25 individuals</a> to replace Kennedy that he used after Justice Antonin Scalia died. On that list of potential nominees, all but three individuals are white and 76 percent are male. </p>
<p>This lack of diversity is reflective of Trump’s nominees to the federal bench.</p>
<p>Trump and his Republican allies in the Senate <a href="http://thehill.com/homenews/senate/385728-republicans-confirming-trumps-court-nominees-at-record-pace">are pushing through</a> nominations for federal judges at an unusually fast pace ahead of the 2018 midterm elections. That’s when the GOP could <a href="https://www.npr.org/2018/05/07/608649799/republican-fears-about-holding-the-senate-start-to-sink-in">lose its majority</a> and end the easy path to confirmation for Trump’s nominees. And Trump is expected to name his Supreme Court nominee within a week.</p>
<p>As political scientists who <a href="https://heinonline.org/HOL/Page?handle=hein.journals/judica92&div=74&g_sent=1&casa_token=&collection=journals">study diversity</a> and the federal bench, we keep an eye on nominations and confirmations. As of early June, Trump had the opportunity to fill 216 vacant seats out of 890, or almost 25 percent of the entire federal bench. There is no question: His appointments will move the courts ideologically to the right. About 39 percent of his nominees are replacing Democratic appointees.</p>
<p>We also find that Trump is in the process of producing a <a href="https://www.washingtonpost.com/politics/courts_law/federalist-society-white-house-cooperation-on-judges-paying-benefits/2017/11/18/4b69b4da-cb20-11e7-8321-481fd63f174d_story.html?utm_term=.baabae82b4f8">substantially more conservative and less diverse</a> federal bench, in terms of race and gender.</p>
<p>Diversity is critical to the court’s legitimacy. Put simply, <a href="https://www.tandfonline.com/doi/full/10.1080/21565503.2018.1478736">people tend to view diverse institutions</a> as more fair, accessible and open. The less the face of the judiciary reflects the diversity of the nation, the more difficult it is for the courts to maintain their legitimacy.</p>
<h2>Reversing a trend</h2>
<p>Trump is nominating men and women who share his conservative philosophy. These <a href="http://thehill.com/regulation/court-battles/360598-meet-the-powerful-group-behind-trumps-judicial-nominations">nominees are vetted</a> by the <a href="https://fedsoc.org/">Federalist Society</a>, a conservative legal advocacy group, to ensure they have appropriate <a href="https://www.nytimes.com/2017/11/11/us/politics/trump-judiciary-appeals-courts-conservatives.html">conservative credentials and jurisprudence</a>.</p>
<p>This is certainly vexing to Democrats, but not unusual. President Barack Obama <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2017/11/28/this-is-how-trump-is-changing-the-federal-courts/?utm_term=.4d5b6c2d6231">did the same thing</a> – picking men and women for the bench that were in his ideological mold, as did most presidents before him.</p>
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<p>Additionally, Trump’s nominees are significantly less diverse than those of other recent presidents. Our last three presidents have valued diversity and appointed significant numbers of women and people of color. This trend still held true even while Democrat and Republican presidents were appointing ideologically aligned judges. President Trump is reversing this trend and as a result, the bench is becoming more white and more male.</p>
<p>Just how different are Trump’s nominees than those of previous presidents?</p>
<p>Using data from the <a href="https://www.fjc.gov/history/judges">Federal Judicial Center</a>, the U.S. courts’ <a href="http://www.uscourts.gov/judges-judgeships/judicial-vacancies">data on judicial vacancies</a> and <a href="https://www.afj.org/our-work/issues/judicial-selection">Judicial Selection materials</a> from the progressive legal advocacy group <a href="https://www.afj.org/about-afj">Alliance for Justice</a>, we took a look at the numbers.</p>
<h2>By the numbers</h2>
<p>Diversity in this context means the nomination of women or people of color to the federal bench. For example, three of Trump’s confirmed judges who identify as Asian-American or Pacific Islander replaced an outgoing white judge. Those three – James Ho, John Nalbandian and Amul Thapar – add racial diversity to the bench. Only eight of Trump’s 39 confirmed judges added racial or gender diversity. We do not include members of the LGBTQ+ community or those who self-identify as disabled here because President Trump’s nominees do not include anyone who identifies as either LGBTQ+ or disabled.</p>
<p>In most other instances, the replacement matches the makeup of the outgoing judge or maintains the same level of diversity. For example, Karen Scholer, a woman who identifies as Asian American/Pacific Islander, replaced Jorge Solis, a man who identifies as Latino. </p>
<p>In eight cases, Trump’s judge actually reduced the diversity on the bench. For example, Gregory Katsas, a white male, replaced Janice Rogers Brown, a black woman.</p>
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<p>Overall, Trump’s judges are not diverse. Three-quarters of Trump’s confirmed judges are male, and almost 90 percent are white. The outgoing judges – appointees of Democratic and Republican presidents, Carter through Obama – are actually a slightly more diverse lot. </p>
<p>Trump’s confirmed judges are only a small subset of all his nominees. However, they are a representative sample. Thus far, 90 percent are white and 77 percent are male. And only 19 of the 119 nominations he has made so far – confirmed and pending – add diversity to the bench, while 26 reduce diversity.</p>
<h2>Trump’s legacy</h2>
<p>Judges hold their positions for life. Since the average age of Trump’s confirmed judges is 51, it is likely that most of his judges will serve for at least 15 to 20 years. </p>
<p>Barring a Democratic wave of wins in the 2018 midterms, it seems likely that a more conservative and less diverse federal bench will be one legacy of the Trump administration. In nominating conservative judges, Trump is following long-standing tradition. By discounting diversity, Trump is casting aside yet another presidential norm.</p><img src="https://counter.theconversation.com/content/99129/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rorie Solberg receives funding from NSF (2008), the Oregon State School of Public Policy (2015; 2012), and Oregon State University College of Liberal Arts (2004). She is affiliated with the PNWPSA, MPSA, and APSA.
</span></em></p><p class="fine-print"><em><span>Eric N. Waltenburg receives funding from Purdue Discovery Park (2018); the NSF (2003); University of Bergen (Norway, 2011); L. Meltzers Hoyskolefond (Norway, 2009). He is affiliated with the APSA, MPSA, SPSA.
</span></em></p>Appointing judges to lifetime terms can be among a president’s longest lasting legacies. The overwhelming majority of Trump’s nominees are conservative, white and male.Rorie Solberg, Associate Professor of Political Science, Oregon State UniversityEric N. Waltenburg, Professor of Political Science, Purdue UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/732352017-03-20T01:32:54Z2017-03-20T01:32:54ZCould Roe v. Wade be overturned?<figure><img src="https://images.theconversation.com/files/161385/original/image-20170318-6094-1oam92j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pro-life and anti-abortion activists converge in front of the Supreme Court on Jan. 27, 2017. </span> <span class="attribution"><span class="source">AP Photo/Andrew Harnik</span></span></figcaption></figure><p>If you care about the future of abortion rights, now is a good time to worry.</p>
<p>A <a href="https://www.oyez.org/cases/2015/15-274">sweeping Supreme Court victory</a> for pro-choice advocates last summer was quickly overrun by worries brought on by the election of Donald Trump and the announcement of his proposed Supreme Court nominee, Neil Gorsuch. </p>
<p>Those concerned about women’s reproductive rights might wonder whether an overruling of Roe v. Wade is on the horizon, now that President Trump’s nominee looks to be all but unstoppable. </p>
<p>Vice President Mike Pence’s decision to <a href="http://www.cnn.com/videos/politics/2017/01/27/mike-pence-entire-march-for-life-rally-sot.cnn">speak at the anti-abortion March for Life</a> in January only added to the discomfort of abortion rights supporters. </p>
<p>But the real danger may be not so much that things will radically change – it’s that they’ll remain the same. From my vantage point as a constitutional law professor who also litigates reproductive rights cases, the landscape looks about as treacherous as it ever has.</p>
<h2>A short-lived victory?</h2>
<p>In <a href="https://www.oyez.org/cases/2015/15-274">Whole Woman’s Health v. Hellerstedt</a>, the Supreme Court decided last summer that if a state law is so difficult to comply with that it has the effect of shutting down abortion clinics without really helping women or making abortions safer, then that law violates the constitutional right to abortion.</p>
<p>Whole Woman’s Health provides an example of how this legal test works. The Supreme Court considered a Texas law that imposed two kinds of regulations on abortion clinics. First, the law mandated that abortion clinics meet the same building and staffing standards as mini-hospitals, a very expensive proposition. Second, the law required clinic doctors to be able to admit patients to a local hospital – a medically unnecessary qualification that can be hard to get in a state where there is widespread opposition to abortion. The state claimed it was imposing all of these regulations to protect patients’ health and safety. The Supreme Court concluded that the law actually did very little to protect women but a whole lot to shut down clinics. In a 5-3 decision, it found the Texas law to be unconstitutional.</p>
<p>According to the <a href="https://www.guttmacher.org">Alan Guttmacher Institute</a>, a nonprofit organization that promotes reproductive rights, 338 laws imposing new abortion restrictions have been adopted by states just since 2010. This number equals about 30 percent of the total number of abortion restrictions currently on the books in this country. </p>
<p>You might think that the Whole Woman’s Health case would have slowed down the pace of anti-abortion laws. </p>
<p>It didn’t. Anti-abortion groups <a href="https://www.nytimes.com/2016/07/10/us/anti-abortion-group-supreme-court-ruling.html">have behaved as though the Supreme Court opinion changed nothing</a>, continuing to push for the same types of laws as they had before.</p>
<p>Indeed, <a href="https://www.guttmacher.org/article/2017/01/policy-trends-states-2016">18 states passed 50 new pieces of anti-abortion legislation in 2016</a>. For example, three states passed laws requiring fetuses and embryos to be buried or cremated after an abortion. Four states passed measures banning the most common abortion procedure after 13 weeks. These laws have the effect of forcing women seeking second-trimester abortions to have a riskier procedure than the one that was banned.</p>
<p>The restrictions don’t target abortion alone. Since July 2015, 15 states have acted to defund Planned Parenthood, a major provider of preventive health care services.</p>
<p>And these statistics do not include the many states bill that are still only proposed or pending.</p>
<h2>The future of the court</h2>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/161375/original/image-20170317-6123-1jxfrz1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/161375/original/image-20170317-6123-1jxfrz1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=744&fit=crop&dpr=1 600w, https://images.theconversation.com/files/161375/original/image-20170317-6123-1jxfrz1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=744&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/161375/original/image-20170317-6123-1jxfrz1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=744&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/161375/original/image-20170317-6123-1jxfrz1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=935&fit=crop&dpr=1 754w, https://images.theconversation.com/files/161375/original/image-20170317-6123-1jxfrz1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=935&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/161375/original/image-20170317-6123-1jxfrz1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=935&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Neil Gorsuch, Trump’s nominee for the Supreme Court.</span>
<span class="attribution"><span class="source">AP Photo/J. Scott Applewhite</span></span>
</figcaption>
</figure>
<p>Although the Supreme Court’s decision in Whole Woman’s Health provides reproductive rights advocates with a powerful tool to challenge the new onslaught of legislative measures, it’s hardly a perfect solution. A legal test that requires balancing benefits and burdens leaves a lot of room for a judge to place a thumb on the scale. </p>
<p>It doesn’t help matters that the Supreme Court left a number of questions unanswered in Whole Woman’s Health. There is still no consensus, for example, on whether state laws requiring burial and cremation for fetuses are constitutional. </p>
<p>This is where the Supreme Court comes into play, since at least some of these new laws will likely end up in front of it. So how can we expect Gorsuch to rule? In a <a href="http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=4658&context=caselrev">speech</a> at my law school last year, Gorsuch praised his predecessor, Justice Antonin Scalia, who was a fierce opponent of abortion rights. Gorsuch also argued, following in Scalia’s footsteps, that “judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views.” This judicial philosophy, called textualism, holds that judges should focus only on the words of the Constitution, and what they meant at the time they were adopted – largely ignoring the ways in which society has changed and leaving both their own politics and popular opinion and beliefs out of the equation.</p>
<p>Yet, the current test for the constitutionality of abortion regulations gives broad discretion to individual judges to decide how to weigh a state’s claimed interest against the woman’s right to access abortion. And, as I have shown in a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2799928">recent law review article</a>, a judge’s underlying views about abortion are often evident in their decisions when abortion is involved – even in cases that are primarily about something else, like free speech rights or religious freedom. The impact of an individual’s political views is likely to be particularly strong at the Supreme Court level, where justices are not strictly bound to follow prior decisions and where the disputes are, almost by definition, difficult, uncharted legal territory.</p>
<p>It’s hard to discern much from <a href="https://theconversation.com/is-trumps-supreme-court-nominee-neil-gorsuch-a-judicial-or-a-political-appointment-72142">Gorsuch’s history</a>, which exemplifies narrow, doctrinal decision-making. In two cases, he voted against <a href="https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/Hill%20Kemp%2010CA%20Opinion%20030607.pdf">abortion</a> <a href="https://www.ca10.uscourts.gov/opinions/15/15-4189.pdf">rights</a> groups but on highly technical grounds. </p>
<p>Perhaps more to the point, Gorsuch has been quite welcoming to religious employers’ claims to be exempt from providing their employees with contraception, recently joining <a href="https://www.ca10.uscourts.gov/opinions/13/13-1540.pdf">an opinion</a> in Little Sisters of the Poor v. Burwell that argued it was too great a burden on a religious employer to even have to file paperwork opting out of the legal mandate. One can probably infer from these cases, and Gorsuch’s admiration for Scalia’s judicial philosophy, that the right to an abortion does not have a prominent place within his understanding of the Constitution.</p>
<p>Still, Roe v. Wade itself is probably safe for now. </p>
<p>Overruling is unlikely, given that Justice Anthony Kennedy will remain the swing vote even after the current vacancy on the Supreme Court is filled. Kennedy has supported the core of the right to choose. The real turning point will likely come if and when Trump gets to make a second nomination to the Supreme Court. That day may not be so far off, since three of the current justices – all moderates or liberals – are over 75 years old.</p>
<p>What is more immediately at risk is the long-term fate of abortion clinics, women’s access to safe abortion and even the availability of other forms of reproductive health care. In other words, what is at risk is everything other than Roe v. Wade.</p><img src="https://counter.theconversation.com/content/73235/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>B. Jessie Hill volunteers as cooperating counsel for the ACLU of Ohio, together with the ACLU Reproductive Freedom Project. She also sits on the board of Preterm, a non-profit reproductive health clinic in Cleveland, Ohio.</span></em></p>What will happen to the landmark abortion rights ruling with Neil Gorsuch on the Supreme Court?B. Jessie Hill, Associate Dean for Academic Affairs and Judge Ben C. Green Professor of Law, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/547212016-02-15T03:31:47Z2016-02-15T03:31:47ZJustice Antonin Scalia: more quotable than influential<p>Justice Antonin Scalia will be remembered for his brilliant intellect, his acerbic wit and his insistence on interpreting law by reference to text and history. </p>
<p>He was long the intellectual leader of the conservative wing of the United States Supreme Court. However, he often seemed more interested in being a leader than in having followers. He was no coalition builder, and as evidenced by his losses in the court’s major decisions last term, his jurisprudence is, in my view, likely to have limited impact.</p>
<p>As someone who had the privilege of clerking on the Supreme Court (for Justice John Paul Stevens) during Justice Scalia’s tenure, I will continue to enjoy my memories of Justice Scalia’s dynamic interaction with clerks. As a professor of constitutional law, I will continue to study and to teach Justice Scalia’s incisive opinions. </p>
<p>When it comes to learning how courts actually interpret the law, though, the majority opinions on which my class focuses are unlikely to be those written by Justice Scalia. </p>
<h2>Champion of new conservatism</h2>
<p>Justice Scalia was appointed to the court by President Ronald Reagan in 1986 at a pivotal time for the conservative movement. </p>
<p>Throughout the 1960s and 1970s, judicial conservativism generally meant adherence to precedent and reluctance to invalidate legislative acts. However, the conservative movement of the 1980s sought instead to undo prior liberal decisions and to limit the power of the national government by rigorously scrutinizing federal statutes.</p>
<p>Justice Scalia served as a perfect champion of these new conservative ideals. He embraced <a href="http://www.heritage.org/constitution/#!http://www1.heritage.org/introessays/3/the-originalist-perspective">“originalism,”</a> the idea that insists that the Constitution must be interpreted by reference to its meaning at the time of its adoption. This approach rejects the idea that new rights may emerge over time. </p>
<p>He also endorsed <a href="http://www.virginialawreview.org/sites/virginialawreview.org/files/347.pdf">textualism</a>, which interprets statutes by focusing solely on their language, rather than the legislature’s overall purpose in enacting them. By refusing to attend to the purpose of legislation, textualism imposes a substantial burden on the legislature to draft complex statutes with exacting precision.</p>
<p>These interpretive swords of originalism and textualism allowed Justice Scalia both to attack liberal precedents that had strayed from what he understood as the Constitution’s historic meaning and to limit the scope of governmental power. </p>
<p>Justice Scalia swung his interpretive swords with notable gusto, and his style and substance achieved some notable victories. His colleagues, as well as advocates before the court, knew that references to legislative history, committee reports or other indications of legislative purpose would draw his ire. </p>
<p>Singlehandedly, he changed the way in which statutes were discussed in the United States Supreme Court.</p>
<p>Beginning in the 1990s, a new conservative majority on the Supreme Court limited the power of the national government, striking down or narrowing important federal legislation such as the <a href="https://www.law.cornell.edu/uscode/text/42/chapter-136/subchapter-III">Violence Against Women Act</a>, <a href="http://www.eeoc.gov/laws/statutes/adea.cfm">the Age Discrimination in Employment Act</a> and the <a href="http://library.clerk.house.gov/reference-files/PPL_VotingRightsAct_1965.pdf">Voting Rights Act</a>. </p>
<p>Writing for the court in <a href="https://www.oyez.org/cases/2007/07-290">District of Columbia v. Heller</a> in 2008, Justice Scalia relied on the original meaning of the Constitution in finding a Second Amendment right for an individual to possess a handgun. </p>
<p>In the <a href="https://www.oyez.org/cases/2008/08-205">Citizens United</a> case in 2010, the court upended decades of precedent to restrict Congress’ ability to regulate the financing of political campaigns.</p>
<h2>Limited victories</h2>
<p>But Scalia’s victories were limited. His style did not always ingratiate him with potential allies on the court. He did not mince words, and he attacked the opinions of other justices, liberal and conservative alike, with unusual ferocity.</p>
<p>In <a href="https://www.law.cornell.edu/supremecourt/text/492/">Webster v. Reproductive Health Services</a> in 1989, three years after joining the court, Justice Scalia famously attacked Justice Sandra Day O'Connor. In this important abortion case, Justice Scalia criticized Justice O’Connor’s opinion as “irrational” and argued that a particular assertion of hers “cannot be taken seriously.” </p>
<p>Three years later, Justice Scalia ended up on the losing side of <a href="https://www.law.cornell.edu/supct/html/91-744.ZS.html">Planned Parenthood v. Casey</a>, as Justice O’Connor coauthored an opinion for a five-justice majority reaffirming the right to an abortion. </p>
<p>In 2015, finding himself in dissent in the year’s most significant cases, Justice Scalia’s vitriol reached new heights. </p>
<p>He derided the majority opinion of Chief Justice John Roberts, which upheld certain subsidies under the Affordable Care Act or “Obamacare.” Referring to this and a previous opinion by the chief justice upholding the ACA, Justice Scalia <a href="https://theconversation.com/obamacare-victory-shows-failure-of-scalias-conservative-revolution-43890">sniped</a>,</p>
<blockquote>
<p>We should start calling this law SCOTUS care.</p>
</blockquote>
<p>Attacking the sometimes lofty rhetoric of the majority opinion by Justice Anthony Kennedy in the same-sex marriage case, Justice Scalia <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">wrote</a> that if he ever joined an opinion with that kind of language, “I would hide my head in a bag.” </p>
<p>And these were his comments directed at justices who generally voted with him.</p>
<p>While Justice Scalia’s caustic style may have been off-putting to some justices, what was more significant was that his interpretive approach failed to win over his colleagues. The last term of the court made that failure clear.</p>
<p>In <a href="http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf">King v. Burwell</a>, a strict reading of the text of the Affordable Care Act would seem to have authorized federal subsidies only for health care exchanges established by states, not for those established by the federal government in states that refused to create exchanges. </p>
<p>If textualism had prevailed, the scope of federal power would have been limited, in this case by potentially gutting the ACA.</p>
<p>But Chief Justice Roberts instead applied traditional principles of statutory interpretation and looked to the overall purpose of the legislative scheme. </p>
<p>By a 6-3 vote, Scalia’s textualism lost, and the ACA won. </p>
<p>From the perspective of the six-justice majority, it made no sense to focus solely on the words of one section, instead of the larger goals of the legislation. In this approach, the court acts as Congress’ partner, not its censor.</p>
<h2>A mixed legacy</h2>
<p>Justice Scalia’s focus on beginning any interpretation with the text of a statute may endure, but his rejection of other interpretive guides never found a lasting home on the court.</p>
<p>Even in his lifetime, his brand of textualism could not earn majority support.</p>
<p>He changed how advocates and judges talk about statutes, but not how they ultimately interpret them.</p>
<p>His attempt to reorient interpretation of the Constitution similarly failed to achieve lasting success.</p>
<p><a href="https://www.oyez.org/cases/2014/14-556">Obergefell v. Hodges</a>, for example, the case affirming a right to same-sex marriage, constituted a dramatic repudiation of Justice Scalia’s originalism. </p>
<p>For Justice Scalia, the disposition was easy: </p>
<blockquote>
<p>When the Fourteenth Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.</p>
</blockquote>
<p>But for the five-justice majority, the rights of loving couples to marry today could not be resolved simply by reference to the views of people who lived 150 years ago. </p>
<p>Contrary to Justice Scalia’s originalism, Justice Kennedy’s majority opinion understood the Constitution as entrusting to </p>
<blockquote>
<p>future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.</p>
</blockquote>
<p>The idea of a “living Constitution,” always anathema to Justice Scalia, prevailed.</p>
<p>Justice Scalia’s opinions, full of erudition, wit, and occasional vitriol, will long be quoted and will fill the pages of legal textbooks. But the memorable opinions will largely be dissents. </p>
<p>His lasting influence will be found in admirers off the court, not in adherents on the bench. He was the champion of a movement that achieved many of its goals but did not succeed in fundamentally reshaping the law in the United States. </p>
<p>He will go down in history, in my view, as one of the most quotable justices, but not one with the deepest impact.</p><img src="https://counter.theconversation.com/content/54721/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Schapiro does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The long-serving justice changed how judges talk about statutes, but not, argues one law professor, how they ultimately interpret them.Robert Schapiro, Dean and Professor of Law , Emory UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/368722015-01-30T10:43:45Z2015-01-30T10:43:45ZDark money: Five years after Citizens United<figure><img src="https://images.theconversation.com/files/70487/original/image-20150129-22288-1j6bcdh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The new normal?</span> <span class="attribution"><span class="source">image via www.shutterstock.com</span></span></figcaption></figure><p>This week’s news brings an important “ah hah” moment. </p>
<p>The conservative billionaire brothers Charles and David Koch of Koch Industries and their political network of donors and opaque outside groups <a href="http://www.usatoday.com/story/news/politics/2015/01/26/koch-brothers-network-announces-889-million-budget-for-next-two-years/22363809/">are planning</a> to spend a stratospheric $889 million in the 2016 presidential and congressional elections. </p>
<p>That is more than double what they and their network spent in 2012, an amount so stupendous that it will be “<a href="http://www.nytimes.com/2015/01/27/us/politics/kochs-plan-to-spend-900-million-on-2016-campaign.html?ref=todayspaper">on par with the spending by (political) parties</a>”</p>
<p>What a way to mark the fifth anniversary of the Supreme Court’s Citizens United decision that paved the way for unlimited political spending by outside groups. </p>
<h2>It wasn’t always so</h2>
<p>There was a time and a place, far, far away, when Americans found such outsized political influence not only unseemly, it was actually illegal.</p>
<p>Consider the US$2.1 million that insurance mogul W Clement Stone gave to incumbent President Richard Nixon’s 1972 reelection campaign and to the Republican Party, then a record. That sum would be equal in today’s inflation-adjusted dollars to $11.9 million, underwhelming now compared to the unseemly sums of cash swirling around these days. </p>
<p>What a long, strange trip it’s been, to paraphrase the Grateful Dead.</p>
<p>In the wake of Watergate, the worst political scandal in American history in which Richard Nixon’s White House, his political party and numerous <a href="http://www.stetson.edu/law/faculty/torres-spelliscy-ciara/media/Statement%20by%20Prof.%20Torres-Spelliscy%20before%20the%20U.S.%20Senate%20Judiciary%20Committee%20on%20Watergate%20and%20Citizens%20United.pdf">corporations</a> secretly but rambunctiously broke federal laws, more than 70 people, including White House aides and Cabinet officials, were convicted of crimes related to the Watergate break-in and its cover up. </p>
<p>In the wake of Nixon’s unprecedented resignation, in August 1974, the new Republican President Gerald Ford signed important reform legislation into law.</p>
<p>The new laws established stricter campaign contribution limits and public disclosure requirements, a federal presidential campaign matching fund system and a new regulatory agency, the <a href="http://www.fec.gov/">Federal Election Commission</a>. </p>
<p>As President Gerard R Ford said, “The times demand this legislation.”</p>
<p>Three months later, the Republicans were utterly humiliated in the 1974 elections. The same happened again in 1976. It was the party’s electoral nadir of the past half century.</p>
<p>Indeed, former GOP chairman and Senator Bill Brock told me years later the public’s repugnance towards them was so bad that worried Republican elders had seriously considered changing the party’s name.</p>
<p>But that was then. </p>
<h2>Rolling back the reforms</h2>
<p>Over the past 40 years, many of the post-Watergate campaign finance reforms have been eliminated or severely eroded, craftily and relentlessly by the powers that be, including both major political parties. </p>
<p>Unfortunately, now even the bedrock value of <a href="http://www.brookings.edu/%7E/media/research/files/papers/2014/11/24%20why%20critics%20transparency%20wrong%20bass%20brian%20eisen/critics.pdf">transparency itself is under siege</a>, criticized for impairing the ability to compromise and weakening government.</p>
<p>And as for the once-humiliated Republicans, they have certainly made their comeback. They control both Houses of Congress, their appointees lead the US Supreme Court and, with the 2016 presidential election looming, they are girding their loins to win the trifecta of all three major branches of government.</p>
<p>How did all of this happen?</p>
<p>It’s a long story, but essentially, the US Supreme Court in a series of rulings that began in 1976 and continues to today, removed many of the post-Watergate campaign contribution limits and other reforms. </p>
<h2>Citizens United v. the Federal Election Commission</h2>
<p>The most significant Court decision of all was the one that occurred on January 21, 2010, in which the Court ruled that the First Amendment forbids the government from limiting independent political expenditures by a nonprofit corporation. </p>
<p>These principles have also now been extended to for-profit corporations, labor unions and other organizations. In other words, pretty much anything goes. Or, as one exasperated observer put it, “the United States Supreme Court struck down barriers to <a href="http://billmoyers.com/2014/07/12/the-senate-judiciary-committee-just-backed-an-amendment-to-overturn-citizens-united/">corporate control of democracy</a> with its 2010 <a href="http://en.wikipedia.org/wiki/Citizens_United_v._FEC">Citizens United v. Federal Election Commission</a> ruling.”</p>
<p>Five years ago and over 35 years after Nixon’s resignation, Justice John Paul Stevens denounced the controversial Citizens United decision in his <a href="http://www.supremecourt.gov/opinions/09pdf/08-205.pdf">dissent</a></p>
<blockquote>
<p>“The rule announced today —- that Congress must treat corporations exactly like human speakers in the political realm —- represents a radical change in the law. The court’s decision is at war with the views of generations of Americans…”</p>
</blockquote>
<p>Justice Anthony Kennedy, voting with the majority, attempted to reassure skeptics, arguing that transparency and disclosure would let citizens “<a href="http://www.nytimes.com/2015/01/25/opinion/sunday/the-growing-shadow-of-political-money.html">see whether elected officials are ‘in the pocket’ of so-called moneyed interests</a>.” </p>
<p>But since then, of course, untraceable donations are on the rise. We now have literally hundreds of millions of <a href="http://www.opensecrets.org/news/2014/11/money-won-on-tuesday-but-rules-of-the-game-changed/">secret dollars </a>washing into the US political process. </p>
<p>As Justice Stevens put it so well, </p>
<blockquote>
<p>“Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf. Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”</p>
</blockquote>
<p>Five months after writing that, Stevens, a Republican who had been appointed to the Court in 1975 by President Ford, retired from the bench at the age of 90.</p>
<p>The amount of completely or partially undisclosed money, often described as “dark money” spent by outside organizations in the 2014 elections is estimated to have been <a href="http://www.opensecrets.org/news/2014/11/money-won-on-tuesday-but-rules-of-the-game-changed/">over $200 million</a>, according to public records analyzed by the respected Center for Responsive Politics in Washington. </p>
<p>A record $6.3 billion was spent on the 2012 presidential and congressional elections and the “<a href="http://www.nytimes.com/2015/01/25/opinion/sunday/the-growing-shadow-of-political-money.html">growing shadow of political money</a>” will become even larger -– the 2016 elections may be the first $8 billion presidential and congressional election cycle.</p>
<p>For years, the United States has already had the longest and most expensive presidential elections on Planet Earth. </p>
<p>The Citizens United decision has significantly exacerbated our precarious, undemocratic condition.</p><img src="https://counter.theconversation.com/content/36872/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles Lewis does not work or consult for, own shares in or receive funding from any company or organization that would materially benefit from this article. He serves on several nonprofit research and journalism organization Boards and Advisory Boards, including the Center for Responsive Politics, mentioned herein.
</span></em></p>This week’s news brings an important “ah hah” moment. The conservative billionaire brothers Charles and David Koch of Koch Industries and their political network of donors and opaque outside groups are…Charles Lewis, Professor and Executive Editor, Investigative Reporting Workshop, American University School of CommunicationLicensed as Creative Commons – attribution, no derivatives.